Hardan v. Nye County Sheriff's Office et al

Filing 27

ORDER Granting in Part and Denying in Part 9 Motion to Dismiss. Amended Complaint deadline: 3/10/2016. Signed by Chief Judge Gloria M. Navarro on 2/18/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MELISSA HARDAN,
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Plaintiff,
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vs.
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NYE COUNTY SHERIFF’S OFFICE; a
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political subdivision of the State of Nevada
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and the County of Nye; SHERIFF ANTHONY )
L. DeMEO, individually; ASSISTANT
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SHERIFF RICHARD MARSHALL,
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individually; LIEUTENANT MARK
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MEDINA, individually; OFFICER CORY
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FOWLES, individually,
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Defendants.
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Case No.: 2:15-cv-0470-GMN-PAL
ORDER

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Pending before the Court is a Motion for Partial Dismissal and Motion for a More

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Definite Statement, (ECF No. 9), filed by Defendants Nye County Sheriff’s Office, Sheriff

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Anthony L. Demeo, Assistant Sheriff Richard Marshall, Lieutenant Mark Medina, and Officer

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Cory Fowles (collectively, “Defendants”). Plaintiff Melissa Hardan filed a Response, (ECF

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No. 17), and Defendants filed a Reply, (ECF No. 21).

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I.

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BACKGROUND
This case arises out of the fatal shooting of Plaintiff’s dog on March 22, 2013. (Compl.,

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ECF No. 1). According to Plaintiff, Officer Cory Fowles (“Fowles”) arrived at Plaintiff’s home

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in response to a complaint of a substitute teacher’s use of corporal punishment on Plaintiff’s

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son. (Id. ¶ 16). When Fowles arrived at Plaintiff’s residence, no one was home, and Fowles

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“scaled the locked and gated fence and entered Plaintiff’s enclosed yard without any

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justification to do so.” (Id. ¶¶ 17–18). Plaintiff’s dog, Roxy, was enclosed in the yard, and

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Fowles shot and killed her. (Id. ¶ 19).

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Moreover, Plaintiff alleges that Defendants Sheriff Anthony L. Demeo (“Demeo”) and

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Assistant Sheriff Richard Marshall (“Marshall”) ratified Fowles’s killing of Plaintiff’s dog. (Id.

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¶ 20). Additionally, Plaintiff contends that Marshall covered up the violations of Plaintiff’s

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civil rights by refusing to comply with Plaintiff’s state freedom of information request, and

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Lieutenant Mark Medina (“Medina”) refused to investigate Plaintiff’s allegations. (Id. ¶¶ 23–

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24). Plaintiff also alleges that Medina showed up at her workplace and attempted to intimidate

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her and dissuade her from seeking redress against Nye County. (Id. ¶ 24).

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As a result, Plaintiff filed the instant action in this Court on March 13, 2015. (See id.).

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Plaintiff asserts the following causes of action: (1) 42 U.S.C. § 1983 violations of First, Fourth,

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and Fourteenth Amendments; (2) 42 U.S.C. § 1983 Monell claims; (3) negligence; and

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(4) intentional infliction of emotional distress. (Id. ¶¶ 27–61). Shortly thereafter, Defendants

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filed the instant Motion for Partial Dismissal and Motion for a More Definite Statement. (ECF

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No. 9).

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II.

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LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon

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which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on

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which it rests, and although a court must take all factual allegations as true, legal conclusions

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couched as a factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule

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12(b)(6) “requires more than labels and conclusions, and a formulaic recitation of the elements

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of a cause of action will not do.” Id.

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility
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when the plaintiff pleads factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Id. This standard “asks for more than a

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sheer possibility that a defendant has acted unlawfully.” Id.

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If the court grants a motion to dismiss for failure to state a claim, leave to amend should

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be granted unless it is clear that the deficiencies of the complaint cannot be cured by

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amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant

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to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in

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the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, futility of the

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amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

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III.

DISCUSSION

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In their Motion for Partial Dismissal and Motion for a More Definite Statement,

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Defendants set forth the following arguments: (1) claims against Nye County Sheriff’s Office

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must be dismissed because it is not an independent legal entity and it does not have the capacity

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to be sued in its own name; (2) Plaintiff’s claim that Medina interfered with her right to petition

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the government warrants dismissal “because, by her own admission, she was given the

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opportunity to speak to Lt. Medina about the pertinent events at the place of her employment”;

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and (3) Plaintiff cannot recover noneconomic damages for the loss of her pet pursuant to

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Nevada law. (Mot. Partial Dismissal 4:12–19, ECF No. 9). Further, Defendants request a more

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definite statement under Federal Rule of Civil Procedure 12(e). (Id. 7:10–21).

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A. Plaintiff’s Claims Against Nye County Sheriff’s Office

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In her Response, Plaintiff concedes that she incorrectly named the Nye County Sheriff’s

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Office rather than Nye County itself. (Resp. 4:22–26, ECF No. 17). Defendants’ Reply states

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that they “do not object to [Plaintiff] amending her complaint to substitute Nye County in the

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place of the originally named defendant, Nye County Sheriff’s Office.” (Reply 3:15–18, ECF

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No. 21). Therefore, the Court grants Plaintiff leave to amend her Complaint to substitute Nye

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County in the place of the originally named defendant, Nye County Sheriff’s Office.

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B. Plaintiff’s First Amendment Claim Against Medina

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Deliberate retaliation by state actors against an individual’s exercise of her First

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Amendment right to petition the government for redress of grievances is actionable under

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§ 1983. Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). To

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demonstrate retaliation in violation of the First Amendment, a plaintiff must prove: (1) a

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defendant took action that would chill a person of ordinary firmness from future First

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Amendment activities, and (2) the defendant would not have taken the action but for the

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defendant’s desire to chill plaintiff's speech. Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1232

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(9th Cir. 2006).

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Defendants argue that Plaintiff’s “right to petition the government was satisfied” by

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Medina’s visit to Plaintiff’s place of employment to allow her the “opportunity to air her

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grievances.” (Mot. 6:15–17, ECF No 9). However, Plaintiff contends that this visit was in fact

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the very instance at which her right to petition was adversely impacted: “Medina showed up at

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Plaintiff’s work and attempted to intimidate her and dissuade her from seeking redress against

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Nye County by yelling at her and saying words intended to prevent the Plaintiff from

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petitioning her government concerning their misconduct.” (Compl. ¶ 24, ECF No. 1).

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Nevertheless, without any further facts, this conclusory statement alone does not provide

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sufficient factual content to survive a motion to dismiss. See Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007). Accordingly, to the extent that Plaintiff’s first cause of action alleges a

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violation of her First Amendment right to petition, that cause of action is dismissed without

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prejudice, with leave to amend.

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C. Plaintiff’s Intentional Infliction of Emotional Distress Claim for Dog’s Death

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Defendants seek to dismiss Plaintiff’s fourth cause of action to the extent that it alleges

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intentional infliction of emotional distress because of the shooting of Plaintiff’s dog. (Mot.

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6:21–7:9, ECF No. 9). Defendants cite Nev. Rev. Stat. § 41.740 for the proposition that

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Plaintiff cannot recover damages for emotional distress regarding the death of her dog. (Id. 7:1–

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5). While Nev. Rev. Stat. § 41.740 allows for the reimbursement of certain expenses in such

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situations, it expressly prohibits the award of punitive and noneconomic damages. Nev. Rev.

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Stat. § 41.740(2). In her Response, Plaintiff “seeks the opportunity to clarify that she does

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NOT seek damages for emotional distress . . . [and] respectfully requests that she be provided

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the opportunity to clarify any uncertainty concerning the categories of damages under her state

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tort claims.” (Resp. 5:25–28, ECF No. 17). Insofar as Plaintiff’s claim alleges damages for

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emotion distress relating to her dog’s death, this claim is dismissed. The Court grants Plaintiff

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leave to amend her Complaint; however, if Plaintiff again alleges emotional distress relating to

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the shooting of her dog, then this claim will be dismissed with prejudice.

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D. Defendants’ Motion for More Definite Statement

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A motion for a more definite statement is made pursuant to Rule 12(e), which requires

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the filing of an amended pleading where the initial pleading is “so vague or ambiguous that the

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party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). “Rule 12(e) is designed to

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strike at unintelligibility, rather than want of detail.” Woods v. Reno Commodities, Inc., 600 F.

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Supp. 574, 580 (D. Nev. 1984). Motions for a more definite statement are disfavored and

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rarely granted. See Millenium Drilling Co. v. Beverly House-Meyers Revocable Trust, 2013 WL

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2152756, at *3 (D. Nev. May 16, 2013) (quoting Sagan v. Apple Comput., Inc., 874 F. Supp.

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1072, 1077 (C.D. Cal. 1994)).

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Defendants request clarification regarding Plaintiff’s Fourth Amendment claim, how
Medina prevented her from petitioning the government, and the manner in which Demeo and

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Marshall ratified any alleged unconstitutional policies. (Mot. 7:14–20, ECF No. 9). As such,

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Defendants’ Motion for More Definite Statement seeks additional facts for clarity, rather than

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alleging that Plaintiff’s Complaint is unintelligible. Accordingly, Defendants’ Motion for More

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Definite Statement is denied.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Motion for Partial Dismissal and Motion

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for More Definite Statement (ECF No. 9) is GRANTED in part, DENIED in part, pursuant

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to the foregoing.

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IT IS FURTHER ORDERED that Plaintiff shall have until March 10, 2016, to file an

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amended complaint which accurately names the Defendants and corrects the deficiencies in her

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claims for First Amendment right to petition and intentional infliction of emotional distress.

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Failure to file by this deadline will result in dismissal of these claims with prejudice.

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DATED this ____ day of February, 2016.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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