Montoya et al v. Smith et al

Filing 49

ORDER dismissing without prejudice all claims against Defendant Marty LNU; dismissing with prejudice all claims against Defendants Pieper, Metro, and Sheriff Gillespie; denying as moot ECF No. 48 Motion for Involuntary Dismissal. Signed by Judge Jennifer A. Dorsey on 9/8/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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2:16-cv-00032-JAD-VCF
Carlos Montoya, et al.,

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Plaintiffs

Order Dismissing Claims

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v.

[ECF No. 48]

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Richard Smith, et al.,
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Defendants
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Carlos Montoya, Maria Landeros, and the estate of Eric Montoya sued the United States of

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America, the Las Vegas Metropolitan Police Department (“Metro”), its sheriff Douglas Gillespie,

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Deputy District Attorney Danielle K. Pieper, four law-enforcement officers, and inmate Raul

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Gonzales in connection with Eric Montoya’s death. They alleged that Metro, the FBI, and District

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Attorney Pieper recruited Gonzales to be a police informant; but Gonzales—a violent gang member

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with a long criminal record—perpetrated crime instead of investigating it, ultimately shooting and

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killing Montoya in order to keep his status as an informant a secret.1

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In June, I dismissed plaintiffs’ claims against Metro, Sheriff Gillespie, and Pieper with leave

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to file an amended complaint by July 18, 2016, if they could plead true facts showing that (1) Pieper

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stepped into the shoes of law enforcement, (2) Sheriff Gillespie was personally involved in the

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events leading to Montoya’s death, or (3) Metro had an unwritten custom, policy, or history of

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recruiting violent criminals as informants.2 I expressly cautioned that, if plaintiffs did not timely file

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an amended complaint, “this case w[ould] proceed against just two defendants: Marty LNU and Raul

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Gonzales.”3

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In that same order, I gave plaintiffs until July 18, 2016, to show cause why the claims against

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See generally ECF No. 1.

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ECF No. 44.

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Id. at 16.
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“Marty LNU,” a yet unserved doe-styled defendant, should not be dismissed under FRCP 4m.4 The

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July 18, 2016, deadline passed more than six weeks ago and plaintiffs did not file an amended

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complaint, show cause why their claims against Marty LNU should not be dismissed, or request an

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extension of time to do so.5

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Accordingly, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

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•

All claims against defendant Marty LNU are DISMISSED without prejudice

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under FRCP 4(m) because it does not appear that this defendant was served within 90

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days of the complaint’s filing6;

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•

All claims against defendant Pieper are DISMISSED with prejudice because

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plaintiffs’ failure to file an amended complaint demonstrates that further amendment

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would be futile;

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•

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Defendant Pieper’s Motion for Involuntary Dismissal [ECF No. 48] is DENIED as
moot;

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All claims against defendants Metro and Sheriff Gillespie are DISMISSED with

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prejudice because plaintiffs’ failure to file an amended complaint demonstrates that

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further amendment would be futile;

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•

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Dated this 8th day of September, 2016.

This case proceeds against one remaining defendant: Raul Gonzales.

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______________________________
____________________
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Jennifer A. Dorsey
ifer A. Dorsey
r D
United States District Judge
dS
Di i J d

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Id. at 7, n.44; 16 (LNU stands for “Last Name Unknown”).

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Plaintiffs appealed my dismissal of their claims against defendants Richard Smith, David Sazer,
and Michael Twomey based on qualified immunity, but they do not challenge the remainder of my
dismissal order. See ECF No. 45.

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See ECF Nos. 1 (complaint, filed 1/7/16); 44 (order to show cause).
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