Tolan v. City of Reno Police Department et al

Filing 40

ORDERED that Ds City of Reno and Michael Poehlman's # 25 Motion to dismiss is GRANTED (as specified herein). FURTHER ORD that Ds Amanda Hartshorn and Michael Barnes' # 26 Motion to dismiss is GRANTED in part and DENIED in part (as speci fied herein). FURTHER ORD that punitive damages are unavailable against D City of Reno for P's claims arising under 42 U.S.C. 1983. Punitive damages are also unavailable against all Ds for P's state law claims. FURTHER ORD Amended Complaint due by 12/28/2010. If P chooses not to file an amended complaint, this case will continue with respect to the claims not dismissed by this order. Signed by Judge Edward C. Reed, Jr on 12/6/2010. (Copies have been distributed pursuant to the NEF - DRM)

Tolan v. City of Reno Police Department et al

Doc. 40

1 2 3 4 5 6 James Anthony Tolan, 7 8 9 10 11 12 13 14 15 16 17 18 19 Plaintiff in this case is James Anthony Tolan. He alleges ) ) Plaintiff, ) ) vs. ) ) RENO POLICE OFFICER AMANDA ) HARTSHORN, individually and in her ) official capacity, RENO POLICE ) OFFICER MICHAEL BARNES, ) individually and in his official ) capacity; MICHAEL POEHLMAN, ) individually and in his official ) capacity as Chief of Police for ) the City of Reno Police ) Department; RENO POLICE DEPARTMENT;) The CITY OF RENO, a political ) subdivision of the state of Nevada;) DOES I-X; ROE CORPORATIONS I-X, ) inclusive, ) ) Defendants. ) ) ) 3:10-CV-17-ECR-RAM UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RENO, NEVADA

Order

20 various civil rights and state law violations.

Defendants include

21 the City of Reno ("Reno"), Reno police officers Amanda Hartshorn 22 ("Hartshorn") and Michael Barnes ("Barnes"), and Reno Police Chief 23 Michael Poehlman ("Poehlman"). 24 Now pending are Reno and Poehlman's motion (#25) to dismiss and Plaintiff opposed The

25 Hartshorn and Barnes' motion (#26) to dismiss.

26 (## 30, 35) the motions, and Defendants replied (## 32, 39). 27 motions are ripe, and we now rule on them. 28

Dockets.Justia.com

1 2

I. Factual and Procedural Background The facts, as alleged in the amended complaint, are as follows.

3 On January 4, 2008, in the early morning hours between 1:00 and 3:00 4 a.m., "Plaintiff was residing in a downtown Reno, Nevada motel on 5 Nevada street when he was approached by Reno Police Officers." 6 Compl. ¶ 9 (#20).) 7 ¶ 10.) "Barnes attempted to speak to Plaintiff." (Am. (Id.

"At that time Plaintiff ran and jumped over the second story Plaintiff "fell to

8 railing in an attempt to evade Barnes." (Id.)

9 the ground, the impact causing a severe compound fracture of the 10 right leg." (Id. ¶ 11.) Barnes then summoned assistance and was Hartshorn and Barnes then

11 joined by Hartshorn.

(Id. ¶ 10.)

12 approached the Plaintiff and confronted him with questions regarding 13 another individual. (Id. ¶ 12.) During the course of the

14 interrogation, Defendants refused to provide medical care. (Id.) 15 Indeed, an ambulance was standing by and was kept from responding. 16 (Id.) After further interrogation, the "onsite emergency medical (Id.

17 technicians were allowed to approach and treat the Plaintiff." 18 ¶ 14.) "Reno Police Department and Chief of Police Poehlman

19 subsequently ratified the acts and omissions of the other defendants 20 by refusing to properly investigate the incident and refusing to 21 discipline or address the misconduct." 22 (Id.)

On December 30, 2009, Plaintiff filed a complaint (#1) in state

23 court, naming Reno, Poehlman and two unnamed police officers, one 24 female and one male, as defendants. On January 11, 2010, Defendants On January 25, 2010, Defendants On March 15,

25 removed (#1) the lawsuit to federal court.

26 Plaintiff filed a motion (#7) to amend his complaint. 27 opposed (#9) the motion, and Plaintiff replied (#13). 28
2

1 2010, we granted (#19) Plaintiff's motion (#7).

On March 18, 2010,

2 Plaintiff filed an amended complaint (#20), substituting Hartshorn 3 and Barnes as defendants for the unnamed female and male, 4 respectively. On March 22, 2010, Poehlman and Reno filed a motion On April 1, 2010, Hartshorn and Barnes filed a Plaintiff opposed (## 30, 35) both motions

5 (#25) to dismiss.

6 motion (#26) to dismiss.

7 (## 25, 26), and Defendants replied (## 32, 39). 8 9 10 II. Motion to Dismiss Standard A motion to dismiss under Fed. R. Civ. P. 12(b)(6) will only be

11 granted if the complaint fails to "state a claim to relief that is 12 plausible on its face." 13 570 (2007). Bell Atl. Corp. v. Twombly, 550 U.S. 544,

On a motion to dismiss, "we presum[e] that general

14 allegations embrace those specific facts that are necessary to 15 support the claim." Lujan v. Defenders of Wildlife, 504 U.S. 555,

16 561 (1992) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 17 (1990)) (alteration in original). Moreover, "[a]ll allegations of

18 material fact in the complaint are taken as true and construed in 19 the light most favorable to the non-moving party." In re Stac

20 Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation 21 omitted). 22 Although courts generally assume the facts alleged are true,

23 courts do not "assume the truth of legal conclusions merely because 24 they are cast in the form of factual allegations." 25 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). W. Mining Accordingly,

26 "[c]onclusory allegations and unwarranted inferences are 27 28
3

1 insufficient to defeat a motion to dismiss." 2 F.3d at 1403 (citation omitted). 3

In re Stac Elecs., 89

Review on a motion pursuant to Fed. R. Civ. P. 12(b)(6) is See Lee v. City of L.A.,

4 normally limited to the complaint itself. 5 250 F.3d 668, 688 (9th Cir. 2001).

If the district court relies on

6 materials outside the pleadings in making its ruling, it must treat 7 the motion to dismiss as one for summary judgment and give the non8 moving party an opportunity to respond. Fed. R. Civ. P. 12(d); "A

9 see United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003).

10 court may, however, consider certain materials -- documents attached 11 to the complaint, documents incorporated by reference in the 12 complaint, or matters of judicial notice -- without converting the 13 motion to dismiss into a motion for summary judgment." 14 F.3d at 908. 15 If documents are physically attached to the complaint, then a Ritchie, 342

16 court may consider them if their "authenticity is not contested" and 17 "the plaintiff's complaint necessarily relies on them." Lee, 250

18 F.3d at 688 (citation, internal quotations, and ellipsis omitted). 19 A court may also treat certain documents as incorporated by 20 reference into the plaintiff's complaint if the complaint "refers 21 extensively to the document or the document forms the basis of the 22 plaintiff's claim." Ritchie, 342 F.3d at 908. Finally, if

23 adjudicative facts or matters of public record meet the requirements 24 of Fed. R. Evid. 201, a court may judicially notice them in deciding 25 a motion to dismiss. Id. at 909; see Fed. R. Evid. 201(b) ("A

26 judicially noticed fact must be one not subject to reasonable 27 dispute in that it is either (1) generally known within the 28
4

1 territorial jurisdiction of the trial court or (2) capable of 2 accurate and ready determination by resort to sources whose accuracy 3 cannot reasonably be questioned."). 4 5 6 III. Analysis Hartshorn and Barnes contend that Plaintiff's amended complaint

7 (#20) should be dismissed as to them because Plaintiff's claims 8 against them are barred by the applicable statute of limitations. 9 In addition, Hartshorn and Barnes raise the qualified immunity 10 defense and contend, in the alternative, that Plaintiff's claims 11 arising under 42 U.S.C. § 1983 fail to state a claim. Hartshorn and

12 Barnes also urge us, in the event that we dismiss Plaintiff's 13 section 1983 claims, to decline supplemental jurisdiction over 14 Plaintiff's state law claims. Reno and Poehlman contend that

15 Plaintiff fails to state a claim, raise the qualified immunity 16 defense as to Poehlman, and likewise urge us to decline supplemental 17 jurisdiction over Plaintiff's state law claims. 18 We will examine each argument, but in the following order. We

19 will first address the propriety of making a determination, at this 20 stage in the litigation, regarding the statute of limitations issue 21 and qualified immunity defense. We will then turn to the question

22 of whether Plaintiff states a claim upon which relief can be 23 granted. 24 Finally, we will address supplemental jurisdiction.

At the outset, however, we note that Plaintiff names Hartshorn,

25 Barnes and Poehlman not just in their individual, but in their 26 official capacities. Official-capacity suits represent a way of

27 pleading an action against an entity of which an officer is an 28
5

1 agent.

Kentucky v. Graham, 473 U.S. 159, 165 (1985).

Plaintiff

2 names Reno as a defendant in this matter.

Therefore, Plaintiff's

3 claims against Hartshorn, Barnes and Poehlman in their official 4 capacities are duplicative of his claims against Reno and will be 5 dismissed with prejudice on that basis. See Carnell v. Grimm, 872

6 F.Supp. 746, 752 (D. Haw. 1994) (dismissing plaintiff's claims 7 against local police officers in their official capacities as 8 duplicative of plaintiff's claims against the city and county of 9 Honolulu, and stating that "courts should treat such suits as suits 10 against the governmental entity"); Luke v. Abbott, 954 F.Supp. 202, 11 204 (C.D. Cal. 1997) ("After the Monell holding, it is no longer 12 necessary or proper to name as a defendant a particular local 13 government officer acting in official capacity.") 14 Plaintiff also names the Reno Police Department as a defendant The Reno Police Department is not a separate See Vance v. County of

15 in this action.

16 political subdivision capable of being sued.

17 Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996); Wayment v. 18 Holmes, 912 P.2d 816, 818 (Nev. 1996). We will therefore dismiss

19 with prejudice Plaintiff's claims as to the Reno Police Department. 20 21 1. Statute of Limitations All of Plaintiff's claims for relief are governed by a two year NEV. REV. STAT. § 11.190(4); The Cmty.

22 statute of limitations.

23 Concerning Comm. Improvement v. City of Modesto, 583 F.3d 690, 701 24 n.3 (9th Cir. 2009). Plaintiff filed his original complaint (#1) on The original

25 December 30, 2009, within the limitations period.

26 complaint, however, did not name Defendants Barnes and Hartshorn; 27 instead, it named fictitious defendants in their places. 28
6

Plaintiff

1 filed an amended complaint (#20), naming Defendants Hartshorn and 2 Barnes, on March 18, 2010, outside the limitations period. 3 Plaintiff's claims against Defendants Hartshorn and Barnes are thus 4 time barred unless the amendment "relate[s] back" to the original 5 complaint. See Merritt v. County of Los Angeles, 875 F.2d 765, 767

6 (9th Cir. 1989). 7 Because the amended complaint, naming Hartshorn and Barnes, was

8 filed subsequent to removal, Plaintiff's claims arising under Nevada 9 common law are governed by the Federal Rule of Civil Procedure 15 10 ("Rule 15")1. FED. R. CIV. P. 15(c); c.f. Anderson v. Allstate Ins.

11 Co., 630 F.2d 677, 682 (9th Cir. 1980) (noting that the issue of 12 relation back was governed by state law, not Rule 15, because the 13 relevant amendments and service of process preceded removal to 14 federal court). Plaintiff's claims arising under section 1983,

15 however, are treated differently, and governed by the state of 16 Nevada's relation back provision. 17 875 F.2d 765, 768 (9th Cir. 1989). 18 An analysis of Plaintiff's Nevada common law claims under Rule Merritt v. County of Los Angeles,

19 15 requires us to ascertain, inter alia, whether the parties brought 20 in by amendment received notice of the action such that they will 21 not be prejudiced in defending on the merits. 22 15(c)(1)(C)(i). 23 24 25 26 27 28 The parties apparently assume that all of Plaintiff's claims are governed by Nevada's relation back provision. They do not provide, however, nor have we discovered, any authority indicating that Plaintiff's state-law claims should be governed by Nevada law. It appears that only Plaintiff's section 1983 claims are governed by Nevada's relation back provision. Nevertheless, the parties should address this issue, should they choose to re-raise the statute of limitation defense, in an appropriate motion.
7
1

FED. R. CIV. P.

An analysis of Plaintiff's section 1983 claims

1 under Nevada's relation back provision requires us to determine, 2 inter alia, whether Plaintiff exercised reasonable diligence in 3 ascertaining the true identities of the intended defendants. 4 Nurenberger Hercules-Werke GmbH v. Virostek, 822 P.2d 1100 (Nev. 5 1991). Under either standard, determining whether Plaintiff's

6 amended complaint relate back to Plaintiff's original complaint 7 requires us to make factual determinations that are inappropriate on 8 a motion to dismiss.2 9 on that basis. We thus decline to dismiss Plaintiff's claims

Defendants, however, may raise this issue again on a

10 motion for summary judgment. 11 12 2. Qualified Immunity Hartshorn, Barnes and Poehlman assert the defense of qualified

13 immunity with respect to Plaintiff's individual capacity claims 14 arising under section 1983. When evaluating qualified immunity

15 defenses, Courts look to see (1) whether the official's conduct, 16 taken in the light most favorable to the party asserting the injury, 17 violated a constitutional right; and (2) whether the right was 18 clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001). At

19 this stage in the litigation, a finding of qualified immunity would 20 be premature. 21 judgment stage. 22 23 24 25 26 27 28 The parties file various documents in connection with the briefing on this motion to dismiss that we cannot and do not consider deciding this motion to dismiss. The parties may submit these documents in connection with a motion for summary judgment or other appropriate motion.
8
2

Defendants may assert this defense at the summary

1 2 3

3. Failure to state a claim a. Fourth Amendment Plaintiff's first claim for relief alleges a violation of the Specifically, Plaintiff alleges that Hartshorn

4 Fourth Amendment.

5 and Barnes, with the "approval and encouragement of Defendants Chief 6 Poehlman and in accordance with the custom and policy" of all 7 defendants "unlawfully and without probable cause restrained 8 Plaintiff of his liberty." 9 (Am. Compl. ¶¶ 16, 17 (#20).)

"The Fourth Amendment prohibits unreasonable searches and

10 seizures by the Government, and its protections extend to brief 11 investigatory stops of persons or vehicles that fall short of 12 traditional arrest." 13 1020 (9th Cir. 2009). Ramirez v. City of Buena Park, 560 F.3d 1012, Under Fourth Amendment jurisprudence, police See Morgan v. Woessner, 997 F.2d

14 stops fall into three categories. 15 1244, 1252 (9th Cir. 1993).

First, a police officer may stop a

16 person for questioning so long as the person is free to leave at any 17 time. Id. Second, a police officer may "seize" a person for a Id. A seizure takes place when a

18 brief, investigatory stop.

19 "police officer accosts an individual and restrains his freedom to 20 walk away." Terry v. Ohio, 392 U.S. 1, 16 (1968). Such stops must

21 be supported by a "reasonable suspicion to believe that criminal 22 activity may be afoot," United States v. Arvizu, 534 U.S. 266, 273 Florida

23 (2002), and require justification as to scope and duration. 24 v. Royer, 460 U.S. 491, 500 (1983).

Third, the police may make a

25 full-scale arrest, which must be supported by probable cause. 26 Morgan, 997 F.2d at 1252. 27 28
9

1

Although Plaintiff alleges that Defendants restrained him

2 without probable cause, Plaintiff does not allege, nor do the 3 allegations support the inference, that the circumstances 4 surrounding his alleged seizure were tantamount to a full-scale 5 arrest and thus required probable cause. Moreover, Plaintiff does

6 not allege that Hartshorn or Barnes seized him without reasonable 7 suspicion or that his seizure was unjustified with respect to either 8 scope or duration. We therefore conclude that Plaintiff has not

9 alleged facts constituting a Fourth Amendment violation. 10 Plaintiff's first claim will be dismissed on that basis. 11 We additionally note that Plaintiff alleges, in support of this

12 claim, that he has suffered "harm to professional and personal 13 reputation." (Am. Compl. ¶ 19 (#20).) Defendants urge us to rule

14 that, to the extent Plaintiff attempts to assert a so-called 15 "defamation-plus" claim, he fails to state a claim. It appears to

16 us that Plaintiff alleges harm to his reputation as a damage, not as 17 an independent claim for relief. Nevertheless, to the extent

18 Plaintiff attempts to assert a "defamation-plus" claim, we agree 19 with Defendants that Plaintiff's claim fails. 20 There are two ways to state a cognizable section 1983 claim for

21 defamation-plus: "(1) allege that the injury to reputation was 22 inflicted in connection with a federally protected right; or (2) 23 allege that the injury to reputation caused the denial of a 24 federally protected right." Herb Hallman Chevrolet, Inc. v. The facts alleged

25 Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999).

26 in Plaintiff's amended complaint do not support either type of 27 "defamation-plus" claim. 28
10

1 2

b. Due Process Plaintiff's second claim for relief alleges a violation of the Plaintiff's amended

3 Due Process clause of the Fourteenth Amendment. 4 complaint is not a model of clarity.

Indeed, it is unclear, from

5 Plaintiff's amended complaint, under what theory Plaintiff alleges a 6 violation of his due process rights. Plaintiff clarifies, however,

7 in his opposition (#35) that his due process claim is based on 8 inadequate medical care: "[t]he facts regarding the lack of medical 9 care will come to light during [discovery]." 10 (#35).) (P.'s Opp. at 11

Plaintiff's claim, based on this theory, fails because

11 Plaintiff does not allege facts indicating he was a pretrial 12 detainee at the time he was allegedly denied adequate medical care. 13 Pretrial detainees have a substantive due process right to Carnell v.

14 adequate medical care under the Fourteenth Amendment. 15 Grimm, 74 F.3d 977, 979 (9th Cir. 1996).

The Ninth Circuit has made

16 clear that, with respect to medical needs, "the due process clause 17 imposes, at a minimum, the same duty the Eighth Amendment imposes: 18 `persons in custody ha[ve] the established right to not have 19 officials remain deliberately indifferent to their serious medical 20 needs.'" Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir.

21 2002) (citing Carnell, 74 F.3d at 979). 22 The Supreme Court has not resolved the question of when exactly

23 the Due Process Clause protection for pretrial detainees begins. 24 Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). Nevertheless, we

25 have not discovered, nor has Plaintiff provided, any authority ­ 26 binding or persuasive -- suggesting that the status of pretrial 27 detainee begins prior to arrest. 28 See, e.g., Gibson v. County of
11

1 Washoe, Nev.,290 F.3d 1175, 1187 (9th Cir. 2002) ("Because Gibson 2 had not been convicted of a crime, but had only been arrested, his 3 rights derive from the due process clause . . . ."). Because

4 Plaintiff does not allege facts indicating that he was denied 5 medical care subsequent to arrest and thus was a pretrial detainee 6 at that time, he fails to state a claim under the Fourteenth 7 Amendment. See also Albright v. Oliver, 510 U.S. 266, 271-7 (1994)

8 (discussing the limited scope of substantive due process rights and 9 expressing "reluctan[ce] to expand the concept") (internal quotation 10 omitted). 11 12 c. Fifth Amendment Plaintiff's third claim for relief asserts a violation of his Specifically, Plaintiff claims that his

13 Fifth Amendment rights.

14 Fifth Amendment rights were violated when Defendants coerced a 15 statement from him. 16 In a set of opinions, none of which commanded a majority on the

17 Fifth Amendment issue, the Supreme Court held that "coercive police 18 questioning does not violate the Fifth Amendment, absent use of the 19 statements in a criminal case." 20 910, 923 (9th Cir. 2009) (citing 21 766 (2003)). Stoot v. City of Everett, 582 F.3d Chavez v. Martinez, 538 U.S. 760,

"A coerced statement has been `used' in a criminal

22 case when it has been relied upon to file formal charges against the 23 declarant, to determine judicially that the prosecution may proceed, 24 and to determine pretrial custody status." 25 Id. at 925.

Plaintiff does not allege facts indicating whether and in what

26 respect his allegedly coerced statement was used against him within 27 the meaning of Stoot. 28 Plaintiff therefore fails to state a claim
12

1 for a violation of the Fifth Amendment. 2 relief will be dismissed on that basis. 3 4 d. Custom and Policy

Plaintiff's third claim for

Plaintiff's fourth and fifth claims for relief are entitled

5 "Custom and Policy" and "Custom and Policy Through Ratification." 6 The claims do not appear to apply to Hartshorn and Barnes; the 7 supporting allegations refer exclusively to Reno and Poehlman. 8 To state a claim against a governmental agency, the pleading

9 must demonstrate that the a custom or policy of the entity caused 10 the violation of Plaintiff's federally protected rights. 11 Department of Social Services, 436 U.S. 658, 694 (1978). Monell v. A

12 plaintiff seeking to establish municipal liability under section 13 1983 may do so in one of three ways: 1) the plaintiff may 14 demonstrate that a municipal employee committed the alleged 15 constitutional violation "pursuant to a formal governmental policy 16 or longstanding practice or custom which constitutes the standard 17 operating procedure of the local governmental entity"; 2) the 18 plaintiff may demonstrate that the person who committed the 19 constitutional violation "was an official with final policy-making 20 authority and that the challenged action itself thus constituted an 21 act of official government policy"; or 3) the plaintiff may 22 demonstrate that "an official with final policy-making authority 23 ratified a subordinate's unconstitutional decision or action and the 24 basis for it." 25 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

In this case, we have ruled that Plaintiff does not state a Therefore,

26 claim for an underlying constitutional violation.

27 Plaintiff's custom and policy claims must be dismissed. 28
13

1 2

e. Negligence and Emotional Distress Plaintiff's sixth and seventh claims for relief allege These claims refer exclusively Hartshorn and

3 negligence and emotional distress.

4 to conduct carried out by Hartshorn and Barnes.

5 Barnes urge us, in the event we dismiss Plaintiff's other claims, to 6 decline supplemental jurisdiction over these claims. Because, as

7 discussed below, we give Plaintiff leave to file an amended 8 complaint, we will continue to exercise supplemental jurisdiction 9 over these claims to the extent and on the basis delineated in our 10 section entitled `Supplemental Jurisdiction'. Hartshorn and Barnes

11 do not challenge Plaintiff's sixth and seventh claims on their 12 merits, and these claims thus survive the present motion to dismiss 13 as to Hartshorn and Barnes. These claims, however, will be

14 dismissed as to Poehlman and Reno because the underlying allegations 15 do not reference any conduct of Poehlman or Reno. 16 17 Retention 18 Plaintiff's eighth claim for relief alleges negligent hiring, f. Negligent Hiring, Training, Supervision and

19 training, supervision and retention. 20 This claim appears to only apply to conduct carried out by Reno In support of this claim, Plaintiff alleges that

21 and Poehlman.

22 "Defendants Chief Poehlman, Reno Police Department and City of Reno 23 failed to exercise reasonable care for the safety and protection of 24 Plaintiff with respect to the hiring, supervising and retention of 25 Hartshorn and Barnes." (Am. Compl. ¶ 33 (#20).) Plaintiff's

26 allegations supporting this claim are entirely conclusory and thus 27 28
14

1 fail to provide Defendants with adequate notice. 2 claim will be dismissed on that basis. 3 4 g. Punitive Damages

Plaintiff's eighth

Defendants urge us to strike Plaintiff's request for punitive

5 damages with respect to the City of Reno and with respect to all of 6 Plaintiff's state law claims. 7 City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271

8 (1981) bars Plaintiff from recovering punitive damages for his 9 section 1983 claims against the city of Reno. Therefore we will

10 strike Plaintiff's prayer for punitive damages with respect to the 11 City of Reno. Moreover, under Nevada law, punitive damages against

12 the City of Reno and the individual officers are unavailable for 13 Plaintiff's state law claims. NEV. REV. STAT. § 41.035(1); Bryan v.

14 Las Vegas Metropolitan Police Dept., 349 Fed. Appx. 132, 135 (9th 15 Cir. 2009). We will therefore also strike Plaintiff's prayer for

16 punitive damages with respect to all defendants for Plaintiff's 17 state law claims. 18 We note, however, that punitive damages remain potentially

19 available to Plaintiff with respect to his section 1983 claims 20 against Hartshorn, Barnes and Poehlman in their individual 21 capacities. 22 23 24 IV. Leave to Amend Under Rule 15(a) leave to amend is to be "freely given when In general, amendment should be allowed with Owens v. Kaiser Found. Health Plan, Inc., 244

25 justice so requires." 26 "extreme liberality."

27 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission 28
15

1 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)).

If factors

2 such as undue delay, bad faith, dilatory motive, undue prejudice or 3 futility of amendment are present, leave to amend may properly be 4 denied in the district court's discretion. Eminence Capital, LLC v.

5 Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 2003). 6 In light of the liberal spirit of Rule 15(a), Plaintiff should If the amended

7 have an opportunity to amend his complaint.

8 complaint is similarly deficient, however, we may be forced to 9 conclude that leave to further amend would be futile. 10 11 12 V. Supplemental Jurisdiction Under 28 U.S.C. § 1367(c), a district court "may decline to

13 exercise supplemental jurisdiction . . . [if] the district court has 14 dismissed all claims over which it has original jurisdiction." 15 U.S.C. § 1367(c)(3). 28

The court's discretion to decline jurisdiction

16 over state law claims is informed by the values of judicial economy, 17 fairness, convenience, and comity. 18 114 F.3d 999, 1001 (9th Cir. 1997). Acri v. Varian Assocs., Inc., In addition, "[t]he Supreme

19 Court has stated, and [the Ninth Circuit] ha[s] often repeated, that 20 `in the usual case in which all federal-law claims are eliminated 21 before trial, the balance of factors . . . will point toward 22 declining to exercise jurisdiction over the remaining state-law 23 claims.'" Id. (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S.

24 343, 350 n.7 (1988). 25 Because we give Plaintiff leave to amend his claims, including

26 his federal claims, we will continue to exercise supplemental 27 jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. 28
16

1 § 1367(c)(3).

Nevertheless, if Plaintiff chooses not to amend his

2 complaint or if Plaintiff's amended complaint fails to state a 3 federal claim, we may decline to exercise supplemental jurisdiction 4 over Plaintiff's remaining state law claims and remand this lawsuit 5 to state court. 6 7 8 VI. Conclusion Plaintiff's claims against Hartshorn, Barnes and Poehlman in

9 their official capacities are duplicative of his claims against Reno 10 and will be dismissed on that basis. The Reno Police Department is

11 not a separate political subdivision capable of being sued; 12 Plaintiff's claims against the Reno Police Department will therefore 13 be dismissed. We decline to dismiss Plaintiff's claims against

14 Hartshorn and Barnes in their individual capacities on the basis 15 that the claims are barred by the applicable statute of limitations; 16 such a decision would require us to make factual determinations 17 inappropriate on a motion to dismiss. We also decline to address

18 Hartshorn, Barnes and Poehlman's defense of qualified immunity 19 because such a determination would likewise be premature at this 20 stage in the litigation. 21 Plaintiff does not allege that the circumstances surrounding

22 his alleged seizure were tantamount to a full-scale arrest and thus 23 required probable cause nor does he allege that he was seized 24 without reasonable suspicion or that his seizure was unjustified 25 with respect to either scope or duration. Plaintiff thus does not Plaintiff does not

26 state a claim for a Fourth Amendment violation.

27 allege facts indicating that he was a pretrial detainee at the time 28
17

1 he was allegedly deprived of medical care.

Thus, Plaintiff does not

2 state a claim for violation of his rights under the Fourteenth 3 Amendment. Plaintiff does not allege facts indicating that his

4 allegedly coerced statement was used against him in a criminal case. 5 Therefore, Plaintiff does not state a claim for a Fifth Amendment 6 violation. Because Plaintiff does not state a claim for an

7 underlying constitutional violation, Plaintiff's fourth and fifth 8 claims ­ alleging that his constitutional violations were caused by 9 custom and policy -- will be dismissed. 10 Plaintiff's sixth and seventh claims, alleging negligence and

11 emotional distress, will be dismissed as to the City of Reno and 12 Poehlman, but not as to Hartshorn and Barnes. Hartshorn and Barnes

13 do not challenge these claims on their merits; rather, they urge us 14 to decline to exercise pendant jurisdiction over these claims. 15 light of our decision, giving Plaintiff leave to amend his 16 complaint, we will continue to exercise supplemental jurisdiction 17 over Plaintiff's state law claims. The allegations underlying In

18 Plaintiff's sixth and seventh claims do not, however, describe any 19 conduct carried out by Reno and Poehlman. 20 be dismissed as to them. The claims will therefore

Plaintiff's eighth claim for relief,

21 alleging negligent hiring, training, supervision and retention, is 22 entirely conclusory and will be dismissed on that basis. 23 24 25 26 27 28
18

1

IT IS, THEREFORE, HEREBY ORDERED that Defendants City of Reno

2 and Michael Poehlman's motion to dismiss (#25) is GRANTED on the 3 following basis: The claims against Defendant Michael Poehlman in 4 his official capacity are dismissed with prejudice. The claims

5 against Defendant Michael Poehlman in his individual capacity are 6 dismissed without prejudice. The claims against Defendant Reno

7 Police Department are dismissed with prejudice. 8 9 IT IS, FURTHER, HEREBY ORDERED that Defendants Amanda Hartshorn

10 and Michael Barnes' motion to dismiss (#26) is GRANTED in part and 11 DENIED in part on the following basis: The claims against Defendant 12 Amanda Hartshorn in her official capacity are dismissed with 13 prejudice. The claims against Defendant Michael Barnes in his Plaintiff's first,

14 official capacity are dismissed with prejudice.

15 second, third, fourth, fifth and eighth claims against Defendants 16 Michael Barnes and Amanda Hartshorn in their individual capacities 17 are dismissed without prejudice. The motion is denied with respect

18 to Plaintiff's sixth and seventh claims against Defendants Michael 19 Barnes and Amanda Hartshorn in their individual capacities. 20 21 IT IS, FURTHER, HEREBY ORDERED that punitive damages are

22 unavailable against Defendant City of Reno for Plaintiff's claims 23 arising under 42 U.S.C. 1983. Punitive damages are also unavailable

24 against all defendants for Plaintiff's state law claims. 25 26 IT IS, FURTHER, HEREBY ORDERED that Plaintiff shall have 21 If Plaintiff

27 days within which to file an amended complaint. 28
19

1 chooses not to file an amended complaint, this case will continue 2 with respect to the claims not dismissed by this order. 3 4 5 DATED: December 6, 2010. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
20

____________________________ UNITED STATES DISTRICT JUDGE