Foley v. Graham et al

Filing 63

ORDER. IT IS ORDERED that 58 the defendants motion to dismiss is GRANTED in part: See Order for Details. Foley has until 11/9/2020, to file his amended complaint consistent with this order. Signed by Judge Jennifer A. Dorsey on 10/19/2020. (Copies have been distributed pursuant to the NEF - cc: complaint/instructions sent to p - JQC)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 Michael Foley,
4

Case No.: 2:16-cv-01871-JAD-VCF

Plaintiff
Order Granting Motion to Dismiss with
Leave to Amend Excessive-force Claim
Only

5 v.
6 Kurt Graham, et al.,

[ECF No. 58]
7

Defendants

8

After multiple amended complaints and motions to dismiss, only two claims and two

9 defendants in their official capacities remain in this civil-rights action. Plaintiff Michael Foley
10 sues Clark County District Attorney’s Office Investigators Kurt Graham and Kenneth Bourne in
11 their official capacities for unlawful arrest and excessive force, stemming from his 2014 arrest
12 for unpaid child-support obligations. Having recently won dismissal of the individual-capacity
13 version of those claims based on immunity, the defendants now move to dismiss these remaining
14 official-capacity claims, arguing that, because Foley cannot state a constitutional violation, the
15 County cannot be liable under Monell v. Department of Social Services. Although I find that this
16 is true for Foley’s unlawful-arrest claim, I give Foley one last chance to amend his excessive17 force claim to state true facts showing that Graham’s handcuffing conduct states a cognizable
18 Monell claim.
19

Background

20

Foley alleges that he was wrongfully arrested in 2014 when Graham and Bourne relied on

21 a warrant that was not authorized by a judge.1 He also claims that when Graham handcuffed
22
23
1

ECF No. 18 at 5.

1 him, he did so “excessively tight” on his wrist.2 More than two years later, Foley sued a handful
2 of defendants under 42 U.S.C. § 1983.3 After multiple rounds of screening, Foley was left with
3 claims against former Sheriff Douglas Gillespie, the Las Vegas Metropolitan Police Department
4 (LVMPD), Graham, and Bourne.4 Dismissal orders further whittled this case down to claims
5 against Graham and Bourne in their official capacities for excessive force and unlawful arrest,
6 which are effectively claims against their offices and not against them personally.5 And because
7 those claims are effectively against the County and not against individuals anymore, they must
8 satisfy the Monell standard.
9

The defendants now seek to fully end this case, which has been idling at the pleading

10 stage for more than four years, arguing that Foley cannot state a claim under Monell because he
11 cannot identify a constitutional violation under his theory of the case, and his complaint lacks
12 factual allegations that the officers acted under a policy or custom to violate his rights. Foley
13 responds with a variety of objections and comments, but they fail to excuse the material
14 deficiency in his pleading: the facts he alleges do not rise to a cognizable constitutional violation
15 under any theory.
16

Discussion
Federal Rule of Civil Procedure 8 requires every complaint to contain “[a] short and plain

17

18 statement of the claim showing that the pleader is entitled to relief.”6 While Rule 8 does not
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20

22
23

Id.

3

ECF No. 1.

4

ECF No. 22.

5

21

2

ECF Nos. 45, 57.

6

Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal,
556 U.S. 662, 678–79 (2009).
2

1 require detailed factual allegations, a properly pled claim must contain enough facts to “state a
2 claim to relief that is plausible on its face” to survive a motion to dismiss.7 This “demands more
3 than an unadorned, the-defendant-unlawfully-harmed-me accusation”; the facts alleged must
4 raise the claim “above the speculative level.”8 In other words, a complaint must make direct or
5 inferential allegations about “all the material elements necessary to sustain recovery under some
6 viable legal theory.”9
Generally, municipalities are not liable under § 1983 unless the “municipality itself

7

8 causes the constitutional violation at issue.”10 In Monell, the United States Supreme Court held
9 that liability extends to a local government only when the constitutional violation was the result
10 of its policy, practice, or custom; or a decision-making official directed or ratified the
11 complained-of conduct.11 But when “there is no constitutional violation, there can be no
12 municipal liability.”12
13 A.

Foley’s excessive-force claim is dismissed with leave to amend.

14

In my last dismissal order, I determined that Graham enjoys qualified immunity from

15 Foley’s excessive-force claim because it was not clearly established that placing handcuffs on an
16 individual—without knowledge that the individual was in pain—violated the Fourth
17 Amendment. I held that those facts “simply do not state a constitutional deprivation” that would
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19
20

7

Twombly, 550 U.S. at 570.

8

Iqbal, 556 U.S. at 678.

9

Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106
21 (7th Cir. 1989)) (emphasis in original).

23

10

City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis in original).

11

22

Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 (1978).

12

Villegas v. Gilroy Garlic Festival, 541 F.3d 950, 957 (9th Cir. 2008); accord City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986).
3

1 defeat qualified immunity.13 The defendants argue that this line in my previous order forecloses
2 Foley’s excessive-force claim in any iteration.14 They add that, even if Foley has alleged
3 sufficient facts to state a constitutional violation, he has not alleged that the violation was the
4 result of a custom or policy established by the County.15 Foley responds that he will have
5 experts testify about his injuries and that he was not required to allege that he knew the
6 handcuffs were too tight at the time of his arrest.
7

Though pro se litigants are afforded a flexible review of their pleadings, they must still

8 state a cognizable theory, and “a liberal interpretation of a civil rights complaint may not supply
9 essential elements of the claim that were not initially pled.”16 Foley’s complaint contains two
10 lines about his excessive-force theory: “During the false arrest, the defendant Kurt Graham
11 placed the handcuffs excessively tight on the right wrist of the plaintiff with deliberate
12 indifference, to cause him to suffer pain and injury to his wrist. The plaintiff suffered pain injury
13 [sic] due to the defendant’s malfeasance and recklessness.”17 Foley does not allege that the tight
14 application of the handcuffs was done in accordance with a County policy. These two
15 conclusory lines fail to state a claim for relief as they are merely a recitation of the elements of
16 an excessive-force claim, and they do not satisfy the additional and necessary Monell standard.
17

But this does not yet mean that Foley could never state an excessive-force claim against

18 the County from these facts. When I dismissed Foley’s individual-capacity excessive-force
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20
21
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13

See ECF No. 57 at 7.

14

ECF No. 58 at 3, 8.

15

Id. at 8, 10.

Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982); see Bruns v. Nat’l Credit Union
23 Admin., 122 F.3d 1251 (9th Cir. 1997); Hebbe v. Pliler, 627 F.3d 338, 341–42 (9th Cir. 2010).
16

17

ECF No. 18 at 5.
4

1 claim against Graham, I did so based on qualified immunity. I determined that while the Ninth
2 Circuit had recognized by 2014 that use of overly tight handcuffs could state a claim for
3 excessive force, those cases were in the context of officers who refused to loosen handcuffs after
4 a detainee made a request or where the handcuffs caused a visible injury.18 So, a reasonable
5 officer would not have been on notice that he was violating Foley’s constitutional rights and
6 Graham thus enjoyed qualified immunity.
7

But the fact that the right was not clearly established for qualified-immunity purposes,

8 does not necessarily mean that Graham’s force was not excessive.19 And although Foley has
9 pled no facts to satisfy the policy, practice, or custom requirement of Monell, I am not yet
10 convinced that he cannot offer such facts. At the dismissal stage in this pro se action, I must
11 liberally grant leave to amend to give Foley the opportunity to put forth any facts he can
12 truthfully plead to state a proper Monell claim for excessive force against Graham in his official
13 capacity. So I dismiss this claim because it is merely a recital of the elements of excessive force,
14 ignores the additional Monell elements needed to maintain this official-capacity claim, and fails
15 to plead facts necessary to state a cognizable claim at this time. But I do so with leave to amend
16 if Foley can plead true facts that show that (1) the force Graham used rises to the level of a
17 constitutional deprivation and (2) a County policy, practice, or custom was the moving force
18 behind that constitutional deprivation.
19
20
21

18

ECF No. 57 at 6 (citing LaLonde v. Cnty of Riverside, 204 F.3d 947, 960 (9th Cir. 2000);
McGuigan v. Cnty. of San Bernardino, 698 F. App’x 919, 920 (9th Cir. 2017) (unpublished);
22 Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993); and Hansen v. Black, 885 F.2d 642, 645
(9th Cir. 1989)).
23 19
See LaLonde v. Cnty. of Riverside, 204 F.3d 947, 960 (9th Cir. 2000) (“The issue of tight
handcuffing is usually fact-specific and is likely to turn on the credibility of the witnesses.”).
5

If Foley chooses to file an amended complaint to cure the defects I’ve identified above,

1

2 he is advised that an amended complaint supersedes the original complaint, so it must be
3 complete in itself without reference back to an earlier version of the complaint. Foley is granted
4 leave to attempt to plead a cognizable excessive-force claim against defendant Graham in his
5 official capacity only; the amended complaint may not include any claims other than this
6 singular one. The amended complaint must be titled “Third Amended Complaint” and it must be
7 filed on the Court’s complaint form. If Foley does not file a Third Amended Complaint by
8 November 9, 2020, the Court will deem that silence an admission that Foley lacks the facts
9 necessary to cure the defects identified in this order and also as consent to dismiss this action
10 with prejudice and close this case.
11 B.

Foley’s unlawful-arrest claim is dismissed with prejudice.

12

When I dismissed Foley’s individual-capacity, unlawful-arrest claim against the

13 defendants, it was because Foley relied on the untenable legal theory that only a judge may sign
14 a warrant in Nevada.20 I wrote, “Foley’s theory that the warrant was legally invalid because it
15 was issued by a hearing master and not a judge fails as a matter of law.”21 The defendants argue
16 that this conclusion also requires the dismissal of this claim against the defendants in their
17 official capacities.22 Foley maintains that several Nevada laws unconstitutionally violate the
18 separation-of-powers doctrine and that his claims must proceed so he can depose judges.23 But
19 because Foley’s factual theory in support of this unlawful-arrest claim fails as a matter of law as
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20

22

ECF No. 57 at 8; see ECF No. 18 at 5, 7, 8.

21

ECF No. 57 at 8.

23

22

ECF No. 58 at 9.

23

ECF No. 60 at 5–11.
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1 I explained in detail in my prior order and will not reiterate here,24 it must be dismissed in every
2 capacity—individual and official. So I grant the defendants’ motion on this claim and dismiss
3 Foley’s unlawful-arrest claim with prejudice because amendment would be futile and I find it
4 “absolutely clear that the deficiencies of the complaint could not be cured by amendment.”25
5

Conclusion
IT IS THEREFORE ORDERED that the defendants’ motion to dismiss [ECF No. 58] is

6

7 GRANTED in part:
8

•

Foley’s claim for unlawful arrest is dismissed with prejudice.

9

•

Foley’s claim for excessive force against Graham is dismissed with leave to amend.

10

•

Foley has until November 9, 2020, to file his amended complaint consistent with this

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order. If he fails to do so, Foley’s excessive-force claim against Graham will be

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deemed abandoned and dismissed with prejudice, and this case will be closed.
•

13

The motion is denied in all other respsects.

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IT IS FURTHER ORDERED that the Clerk of Court is directed to

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Terminate defendant Bourne from this action, and

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SEND plaintiff the court’s civil-rights complaint form for a non-prisoner.

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_______________________________
U.S. District Judge Jennifer A. Dorsey
October 19, 2020

19
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21

See ECF No. 57 at 7–9. Foley’s arguments about the validity of this claim and the illegality of
the warrant do not persuade me otherwise.

22

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25

Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d
1202, 1203–04 (9th Cir. 1988)).
7