LaGrange et al v. Hatcher et al

Filing 51

ORDER: IT IS ORDERED Motion to Dismiss 41 is GRANTED. FURTHER ORDERED Plaintiff shall have twenty days to file amended complaint. Signed by Judge Larry R. Hicks on 6/7/12. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSIE GARCIA, and NANCY LaGRANGE, )
guardian ad litem of ALIZE MARTINEZ,
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Plaintiffs,
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v.
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STEVEN HATCHER, et al.,
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Defendants.
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3:09-CV-00681-LRH-WGC
ORDER

Before the court is Defendants Steven Hatcher and the Nevada State Gaming Control

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Board’s Motion to Dismiss Amended Complaint (#41). Plaintiffs Josie Garcia and Nancy

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LaGrange, as guardian ad litem of Alize Martinez, filed an opposition (#42), to which Defendants

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replied (#44).

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I.

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Facts and Procedural History
This is a tort case arising out of the death of Santiago Ray Martinez. On January 7, 2008,

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Hatcher, an Enforcement Agent of the Board, shot and killed Martinez in Washoe County, Nevada.

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While off-duty and not in uniform, Hatcher commandeered a commercial vehicle to pursue the

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vehicle in which Martinez was riding. Hatcher subsequently caught up to Martinez’ vehicle,

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identified himself as a law enforcement officer and ordered the car in which Martinez was riding to

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stop. Although Hatcher had radioed for back-up from the Reno Police Department, he used his

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duty pistol to shoot and kill Martinez.

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Following an initial round of motions to dismiss, an appeal to and remand from the Ninth

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Circuit, the filing of Plaintiff’s Amended Complaint (#35), and the stipulated dismissal of the

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Board and the vast majority of Plaintiff’s amended claims (#45), only one claim remains: the

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second claim for relief by LaGrange, as guardian ad litem of Martinez’s minor daughter Alize,

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against Hatcher for violation of the minor’s Fourteenth Amendment due process right to familial

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association with Martinez. The court’s consideration of Defendants’ motion to dismiss shall be

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limited accordingly.

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II.

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Legal Standard
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6), a complaint must satisfy the notice pleading standard of Rule 8(a)(2). See

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Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). A complaint must

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contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

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R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations;

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however, a pleading that offers only “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action” will not suffice. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Id. at 1949 (internal

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quotation marks omitted). A claim has facial plausibility when the pleaded factual content allows

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the court to draw the reasonable inference, based on the court’s judicial experience and common

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sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. “The plausibility

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standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a

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defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a

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defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to

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relief.” Id. at 1949 (internal quotation marks and citation omitted).

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In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as
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true. Id. (citation omitted). However, “bare assertions . . . amount[ing] to nothing more than a

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formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth.”

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Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1951)

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(alteration in original) (internal quotation marks omitted). The court discounts these allegations

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because they do “nothing more than state a legal conclusion – even if that conclusion is cast in the

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form of a factual allegation.” Id. (citing Iqbal, 129 S. Ct. at 1951.) “In sum, for a complaint to

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survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from

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that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id. (quoting

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Iqbal, 129 S. Ct. at 1949).

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III.

Discussion

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The Fourteenth Amendment prohibits a state from depriving “any person of life, liberty, or

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property, without due process of law.” U.S. Const. amend XIV, § 2. “[O]nly official conduct that

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‘shocks the conscience’ is cognizable as a due process violation.” Porter v. Osborn, 546 F.3d

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1131, 1137 (9th Cir. 2008) (citing County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).

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There are two distinct standards used to prove that conduct “shocks the conscience”: (1) the official

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acted with “deliberate indifference”; or (2) the official acted with a “purpose to harm . . . for

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reasons unrelated to legitimate law enforcement.” Id. Deliberate indifference can only be

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employed when “actual deliberation is practical.” Lewis, 523 U.S. at 851 (citation omitted). On

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the other hand, “[w]hen an officer encounters fast paced circumstances presenting competing

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public safety obligations, the purpose to harm standard must apply.” Porter, 546 F.3d at 1139.

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Under the circumstances presented, the court is compelled to conclude that Hatcher would

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not have been able to deliberate his actions and therefore the purpose to harm standard must apply.

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Plaintiff’s allegation that “Hatcher had minutes or substantially more than a split-second to

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deliberate” does not compel a contrary result. If anything, it brings this case firmly within Porter,

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which involved a relatively stationary altercation lasting approximately five minutes. Despite the

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fact that it is logically possible for an officer giving chase to deliberate, “‘deliberation’ for purpose

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of the shocks the conscience test is not so literal a concept.” Id. at 1139. As in Porter, this case

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involves an officer’s quick actions in response to a fast-paced, evolving and escalating set of

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circumstances taking place over a short period of time. See id. at 1139-40. Plaintiff must therefore

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demonstrate that, on the totality of the circumstances, Hatcher intended to inflict harm beyond that

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which is required for legitimate law enforcement. See id. at 1140-41.

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Plaintiff alleges that “Hatcher had no legitimate law enforcement reason or purpose or

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objective for the use of deadly force,” and that his actions were “done with evil motive, malice,

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oppression, and deliberate indifference to decedent’s constitutional rights and the right of the minor

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child to enjoy a familial relationship.” (Am. Compl. (#1), ¶¶ 6, 16.) However, such formulaic

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recitation of the elements of a claim do nothing more than state a legal conclusion and are not

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entitled to a presumption of truth. Iqbal, 129 S. Ct. at 1951; Moss, 572 F.3d at 969. Further, the

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non-conclusory factual content provided by Plaintiff fails to plausibly suggest that, on the totality of

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the circumstances, Hatcher intended to inflict harm beyond that which is required for legitimate law

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enforcement. The complaint is devoid of any allegations suggesting what Hatcher’s motivations in

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pursuing Martinez actually were, that he did not in fact believe he was responding to an apparent

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emergency, or that he was not responding to a pre-existing situation and created the very emergency

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he then resorted to deadly force to resolve. See Porter, 546 F.3d at 1141. Indeed, Plaintiff’s factual

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allegations are devoid of any context whatsoever, requiring knowledge of facts outside the

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complaint to even identify what occurred and make any sense of Plaintiff’s disjointed and

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sometimes contradictory allegations.

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The court therefore finds that Plaintiff has failed to state a plausible claim for relief under

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the purpose to harm standard. However, the court will sua sponte grant Plaintiff one last

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opportunity to attempt to remedy the deficiencies in the complaint.

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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (#41) is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff shall have twenty days in which to file an

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amended complaint, if Plaintiff chooses to do so.

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IT IS SO ORDERED.

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DATED this 7th day of June, 2012.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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