Tolan v. City of Reno Police Department et al

Filing 54

ORDERED that Ds' # 44 Motion to strike on this issue is GRANTED and DENIEDon the bases set forth (herein) as follows: (1) DENIED as to the First Cause of Action; (2) DENIED as to the Second Cause of Action; (3) GRANTED as to the T hird Cause of Action; (4) GRANTED as to the Fourth Cause of Action; (5) DENIED as to the Fifth Cause of Action; (6) GRANTED as to the Sixth Cause of Action for intentional infliction of emotional distress; (7) DENIED as to the Sixth Cause of Action for negligent infliction ofemotional distress; (8) GRANTED as to the Seventh Cause of Action; (9) GRANTED as to the Eighth Cause of Action; (10) GRANTED as to the Ninth Cause of Action. FURTHER ORD that D Poehlman is dismissed entirely from this action. FURTHER ORD that P's motion to be permitted to file a third amended complaint is DENIED. Signed by Judge Edward C. Reed, Jr on 8/18/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES ANTHONY TOLAN,

) Case No. 3:10-cv-00017-ECR-RAM
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Plaintiff,
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vs.
) ORDER
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CITY OF RENO; RENO POLICE
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OFFICER AMANDA HARTSHORN, )
OFFICER MICHAEL BARNES, et )
al.,
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Defendants.
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Defendants have filed a Motion (#44) to Dismiss Plaintiff’s Second

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Amended Complaint (“SAC”) (#41), pursuant to Rule 12(b)(6) of the Federal

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Rules of Civil Procedure (Fed. R. Civ. P.) and to strike certain portions thereof,

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pursuant to Fed. R. Civ. P. 12(f). Plaintiff has opposed (#50) the motion, and

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Defendants have filed a reply (#53) in support of the motion. We previously

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entered our order (#40) dismissing in part Plaintiff’s First Amended Complaint

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(FAC) and allowing Plaintiff the opportunity to file a Second Amended

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Complaint (SAC) which he has done (#41).

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FIRST CAUSE OF ACTION
In the First Cause of Action, Plaintiff alleges he was arrested by
Defendants Hartshorn and Barnes without probable cause.

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Defendants contend that Plaintiff was not arrested by Hartshorn and

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Barnes at all at the time of the incident complained of and, therefore, there could

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be no arrest without probable cause.

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A person is arrested or seized only if in view of all the circumstances

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surrounding the incident, a reasonable person would have believed he was not

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free to leave. The reasonable person test is an objective one applied from the

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viewpoint of an innocent person.

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There is also an element of detention involved in an arrest. Thus, if an

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officer states to a person,“you are under arrest” or points a gun at him and tells

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him to stop and the individual runs away, there is no arrest. Here, when Barnes

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pulled his handgun and ordered Plaintiff to stop and Plaintiff ran away and was

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not detained, there was no arrest.

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The Second Amended Complaint (SAC) alleges that after Plaintiff ran

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away from Officer Barnes he jumped over the railing of a second story building

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in an attempt to evade Officer Barnes; that Plaintiff fell to the ground, the impact

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causing a severe compound fracture of his right leg; and that Defendant

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Hartshorn had arrived on the scene to assist Officer Barnes.

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The SAC then alleges: “Hartshorn and Barnes approached the prone,

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injured Plaintiff. The nature of his injury was profoundly evident. Tolan was at

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that time under arrest and was subsequently prosecuted for being in possession of

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a stolen vehicle. He was not free to leave and was unable to summon medical

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care because the two officers assisted by other officers refused to allow anyone to

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come to his aid. Hartshorn then confronted Plaintiff, questioning him regarding

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the other individual and refusing Tolan medical care. Hartshorn was assisted by

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Barnes and other officers. Plaintiff was refused medical care while he was being

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interrogated. While the defendants refused to provide medical care, an

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ambulance was standing by and was deliberately kept from responding.” (SAC

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at p.2, ll 24-28 and p. 3 ll 1-3).
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The question for the Court is whether the pleading is sufficient to allege

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that Plaintiff was under arrest at the time in question. Plaintiff’s summary

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allegation that “Tolan was at that time under arrest” is merely conclusory and not

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determinative. Defendants’ argument that Plaintiff was not free to leave at that

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time because of his broken leg is true, but it does not tell the whole story. The

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ambulance was standing by and at Plaintiff’s or the officers’ request would have

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removed him from that location. Plaintiff was free to leave in the sense that at

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his request the ambulance attendants would have taken him from the scene, but

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for the officers’ insistence that he remain in that location without the help of the

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ambulance crew, so that they could question him about the other individual who

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had escaped.

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No one at the scene said to Plaintiff, “you are under arrest,” but a

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reasonable person in Plaintiff’s circumstances with the officers standing over him

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and questioning him would not have believed he was free to leave that location

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and that scene even though he otherwise might have been able to depart via the

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ambulance. While we find this issue to present a fairly close question, it appears

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for pleading purposes at this stage of the action, taking the allegations of the

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SAC as true, together with all reasonable favorable inferences therefrom, the

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allegations of the SAC with respect to the First Cause of Action do state a

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constitutional claim. It is not inconceivable that at summary judgment, or some

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other subsequent stage of the proceedings, it may turn out no arrest in fact

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occurred at that time.

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In our previous order (#40) in analyzing the First Cause of Action as

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pleaded in the First Amended Complaint (FAC) (#20), we concluded Plaintiff

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had alleged a Terry Stop, that there was reasonable suspicion for the stop and

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dismissed this cause of action on that basis.

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In contrast to an arrest, a Terry Stop is a relatively brief investigatory stop
based on objectively reasonable suspicion that criminal activity is afoot. A
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reasonable person detained in such circumstances would conclude that after brief

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questioning, he or she would be free to leave. The SAC does add some

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additional facts to the scenario that are over and above those pleaded in the FAC:

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that Barnes had seen Plaintiff and another individual exit a vehicle that was

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reported stolen; that Barnes pulled his handgun and ordered Plaintiff and the

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other individual to stop; that Plaintiff was subsequently prosecuted for being in

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possession of a stolen vehicle.

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We consider the totality of the circumstances in making our judgment as to
whether Plaintiff’s detention by the officers was a Terry Stop or a full fledged

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arrest. Considering the facts pleaded in the SAC as true with all reasonable

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inferences being taken in favor of Plaintiff, we conclude that a reasonable person

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in Plaintiff’s situation would conclude that after brief questioning he would not

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have been free to leave after the officers’ interrogation was completed. These

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pleaded facts and inferences viewed from the perspective of a reasonable person

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appear to meet, but to barely meet, tests for an arrest. As noted above, this

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conclusion as a matter of fact may well be modified or even reversed at a later

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stage in the proceedings.

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The Motion to Dismiss (#44) as to the First Cause of Action will therefore
be DENIED.

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SECOND CAUSE OF ACTION

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Plaintiff’s Second Cause of Action is based upon a claim that Defendants

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Hartshorn and Barnes were constitutionally deliberately indifferent to Plaintiff’s

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serious medical needs during the time they detained him on the ground to

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interrogate him regarding the other individual who escaped and refused Plaintiff

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medical care for the severe compound fracture of his right leg.

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Our discussion with respect to the First Cause of Action that Defendant

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was for pleading purposes arrested and therefore in custody during the time he
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was interrogated determines the outcome of this issue. The defense is essentially

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that there was no arrest at that time; that Plaintiff was not a pretrial detainee; and,

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hence, the officers had no constitutional duty to have his serious medical injuries

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attended to. If as we have found the pleading in the SAC is sufficient with all

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reasonable inferences drawn in favor of the Plaintiff to show that Plaintiff was

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under arrest at that time, he was a pretrial detainee entitled constitutionally to

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have the officers address his serious medical needs.

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In our previous Order (#40), we dismissed these claims on the basis that
Plaintiff’s detention was only a Terry Stop and hence the obligation to see to

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Plaintiff’s medical needs was questionable. The repleading of the First Cause of

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Action and Second Cause of Action leads us to the conclusion that Plaintiff had,

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at least for the purposes of this pleading stage, been arrested by Hartshorn and

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Barnes at the scene of the subject incident. We have therefore found that the

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obligation of the officers to address Plaintiff’s medical needs did kick in at that

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time.

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Defendants’ Motion to Dismiss (#44) as to the Second Cause of Action
will therefore be DENIED.

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THIRD CAUSE OF ACTION

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Plaintiff’s Third Cause of Action is based upon the claim that Defendants

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had a policy that allowed and encouraged the alleged misconduct and failed and

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refused to investigate or take corrective actions when made aware of it. The SAC

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alleges Defendants allowed and encouraged misconduct.

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The issue we must address is whether this pleading is sufficient to show

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that the City had an unconstitutional custom, policy, or practice of its police

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officers arresting people without probable cause and/or of deliberate indifference

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to serious medical needs of persons in police custody.

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The allegation that the City had a policy that allowed and encouraged the
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“described misconduct” is conclusory in nature. Simply making such an

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allegation does not in the general terms stated present facts from which it may be

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concluded that the City had such a policy. The allegations are purely formulaic.

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A plaintiff may prove the existence of a custom or informal policy by

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showing repeated constitutional violations. A custom must be so persistent and

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widespread that it constitutes a settled policy which can result in municipal

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liability. A custom may not be predicated on isolated or sporadic incidents.

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This pleading is simply inadequate to establish that the alleged custom or
practice was founded on practices of sufficient duration, frequency, and

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consistency that it was a policy of the City. This issue was also dealt with in

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detail in our previous order (#40).

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Defendants’ Motion to Dismiss (#44) as to the Third Cause of Action will
therefore be GRANTED.

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FOURTH CAUSE OF ACTION
Plaintiff’s Fourth Cause of Action is based on what Plaintiff characterizes

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as “Custom and Policy Through Ratification.” The allegations are that

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Defendants Poehlman and the City ratified and encouraged the conduct of

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Hartshorn and Barnes at the scene in question and thereby adopted and

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incorporated this conduct as custom and policy for the City; that Defendants

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Poehlman and the City ratified, encouraged, and allowed the described

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misconduct by refusing to properly investigate and address similar incidents in

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the past; that for the past fifteen-plus-years, Reno Police Department has

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encouraged and allowed officers to misrepresent and conceal misconduct in order

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to escape liability and accountability; that Defendant Poehlman adopted the

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policy shortly after assuming supervision of the Department; and that Defendant

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Poehlman and the City became aware of misconduct and failed to take action,

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and ratified the misconduct by this failure to address the misconduct.
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In part, for the reasons stated with respect to the dismissal of the Third

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Cause of Action and the additional analysis set forth below, we find that

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allegations that Defendant Poehlman and the City ratified and encouraged the

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conduct of Hartshorn and Barnes and thereby adopted their conduct as custom

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and policy of the City is without merit with respect to the claims made in this

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cause of action. The alleged ratification of the conduct at issue did not in this

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case create a City policy condoning such conduct.

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Ratification of a subordinate’s conduct by a City policymaker can result in
liability for the municipal defendant, the City in this case. It is the act of the

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policymaker that creates liability. The question with respect to this issue in this

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case is whether the acts attributed to the policymaker in the SAC constituted the

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ratification necessary to impose liability on the City. Here, the alleged

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ratification consisted of refusing to properly investigate and address similar

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incidents in the past. Certainly this past conduct of the claimed policymaker

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could not by itself be the basis of a claim respecting the present incident at issue.

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Nor could the fact that for the past fifteen years the police department allowed

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officers to misrepresent and conceal misconduct in order to escape liability and

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accountability constitute ratification of the Defendant officers’ conduct with

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respect to the incident at issue.

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The critical issue to be dealt with here is whether the act or acts attributed

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to the policymakers in the SAC constituted “ratification.” The precedential

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authority indicates that ratification occurs if the authorized policymaker approves

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a subordinate’s decision and the basis for it. The refusal, as pleaded here, to take

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action and address the misconduct does not constitute ratification such that

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would impose liability on the City. Such conduct does not constitute an

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affirmative conscious choice by the policymaker to approve the subordinates’

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acts or the basis for them. The pleading is insufficient to show ratification.

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There is little doubt that Defendant Poehlman was a policymaker for the
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City, but the conduct attributed to him in the SAC did not constitute ratification

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to impose liability on the City. The City itself is not as such a policymaker.

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Some official of the City must act as policymaker for it. The failure of Defendant

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Poehlman and the City to train and supervise the other defendants does not

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constitute ratification of the conduct at issue. The filing of a complaint with the

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Internal Affairs Department and subsequent denial of wrongdoing on the part of

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the Defendants do not constitute ratification.

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There was no ratification that adopted the conduct of the officers at the

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scene as a custom or policy of the City. No facts supporting ratification have

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been pled.

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Defendants’ Motion to Dismiss (#44) will therefore be GRANTED as to
the Fourth Cause of Action.

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FIFTH CAUSE OF ACTION

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The Fifth Cause of Action is a supplemental state claim for negligence. In

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their motion (#44), Defendants seek to dismiss this claim on the basis that under

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Nevada law, the state defined Terry Stop was a justified seizure and detention

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because the officers had reason to believe Plaintiff had committed or was about

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to commit a crime. This argument now fails according to our analysis because

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we have found above that the SAC pleading may reasonably be interpreted as

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indicating Plaintiff was under arrest at the time of the incident in question.

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Defendants’ Motion to Dismiss (#44) will therefore be DENIED as to the
Fifth Cause of Action.

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SIXTH CAUSE OF ACTION

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Plaintiff’s Sixth Cause of Action is a state supplemental claim for

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intentional and negligent infliction of emotional distress.

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Intentional Infliction of Emotional Distress

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In his opposition to the motion, Plaintiff did not present any legal or

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factual arguments. Defendants claim that the conduct of the officers was not so

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extreme and outrageous as to go beyond the bounds of decency and to be

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regarded as atrocious and utterly intolerable in a civilized community. The

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conduct of the officers in questioning Plaintiff for several minutes about the other

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individual who escaped does not appear to meet such a test for a claim of

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intentional infliction of emotional distress.

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Further, the claim of intentional infliction of emotional distress appears to

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be pled in a conclusory fashion with no substantial supporting facts. Defendants’

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Motion to Dismiss (#44) as to the Sixth Cause of Action insofar as it alleges a

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claim for intentional infliction of emotional distress will be GRANTED.

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B.

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Negligent Infliction of Emotional Distress
The Sixth Cause of Action insofar as it alleges a claim for negligent

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infliction of emotional distress presents a more difficult question. The SAC

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makes a specific reference to a claim of Defendants’ negligence. The SAC

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alleges that the officers questioned Plaintiff for several minutes about the

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escaped individual; they knew or should have known this would cause and did

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cause Plaintiff to suffer severe emotional distress. Defendants contend they are

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entitled to defenses of lack of duty, lack of injury, and alternatively justification.

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The justification referred to appears to be a defense for a Terry Stop under

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Nevada State law. It further appears that the Defendant officers may have had a

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duty to Plaintiff not to negligently inflict such distress on him in the

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circumstances. The SAC does plead injury. The Sixth Cause of Action is

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pleaded in an essentially conclusory fashion which makes the issue difficult to

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decide at this juncture of the case.

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The arguments presented by Defendants in their motion (#44) do not

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appear to present a sufficient and appropriate basis to dismiss the claim for
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negligent infliction of emotional distress at this stage of the proceedings. The

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motion by Defendants (#44) to dismiss Plaintiff’s Sixth Cause of Action for

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negligent infliction of emotional distress will therefore be GRANTED.

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SEVENTH CAUSE OF ACTION

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Our previous Order (#40) dismissed this same claim as pled at that time in

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the FAC as conclusory. This is a state supplemental claim for negligent hiring,

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training, supervision, and retention. The SAC adds to the allegations in the FAC

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that:

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(1)

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Defendant Barnes pulled his handgun and ordered Plaintiff and the
other individual to Stop.

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Defendants Poehlman and the City failed to exercise reasonable care

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for the safety and protection of Plaintiff with respect to the hiring,

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supervision and retention of Hartshorn and Barnes.

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These additional allegations stated in very general and conclusory terms

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add little to save this claim. The claim remains without any material, substantial,

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factual support. Defendants’ Motion to Dismiss (#44) will be GRANTED as to

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the Seventh Cause of Action.

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EIGHTH CAUSE OF ACTION

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The Eighth Cause of Action of the SAC seeks punitive damages. This is

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not as such a cognizable cause of action. It may be a basis for damages arising

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from other causes of action.

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In response (#50) to the Motion to Dismiss (#44), Plaintiff states that his

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inclusion of punitive damages against the City in the SAC is an oversight and

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will be stricken. In our previous order (#40), we found that punitive damages are

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unavailable against the City under the federal claims pursuant to § 1983, and

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against all Defendants on the state claims, but that Plaintiff could seek punitive
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damages against Hartshorn and Barnes in their individual capacities on Plaintiff’s

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§ 1983 claims.

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Defendants’ Motion to Dismiss (#44) the Eighth Cause of Action for
punitive damages will be GRANTED.

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NINTH CAUSE OF ACTION
No cause of action as such may lie for attorney’s fees under the facts of

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this case. Defendants’ Motion to Dismiss (#44) will be GRANTED as to the

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Ninth Cause of Action.

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DEFENDANT POEHLMAN
In our foregoing Order, we did not dismiss the First Cause of Action of the

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SAC. However, the pleaded claim against Defendant Poehlman in the First

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Cause of Action is that the conduct of Hartshorn and Barnes was with the

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assistance, approval, and encouragement of Defendant Poehlman. This is a §

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1983 federal claim. There is no respondeat superior liability under § 1983. To

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be liable, a supervisor must participate in the objectionable conduct. The general

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conclusory assertions of assistance and approval are not adequate to show the

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supervisor, individually, participated in Hartshorn and Barnes’ alleged conduct.

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The First Cause of Action must be dismissed as to Defendant Poehlman.

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The specific allegations in the Second Cause of Action of the SAC do not

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mention any additional conduct of Defendant Poehlman with respect to what

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Hartshorn and Barnes did. For the same reasons as mentioned above with respect

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to the First Cause of Action against Defendant Poehlman, the Second Cause of

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Action in the SAC will be dismissed.

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The Third and Fourth Causes of Action appear to be allegations against the

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City. These causes of action will be dismissed as to Defendant Poehlman. The

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Fifth and Sixth Causes of Action are brought against Defendants Hartshorn and
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Barnes and are not pleaded against Defendant Poehlman.
By the foregoing orders and analysis, we have dismissed the Seventh and

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Eighth Causes of Action. Defendant Poehlman is not liable in his official

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capacity since such claims against him are duplicative of Plaintiff’s claims

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against the City.

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Therefore, there are no remaining claims against Defendant Poehlman, and
he will be dismissed entirely from the action.

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CITY OF RENO

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We now address whether the pleading of the SAC with respect to the

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remaining First and Second Causes of action is sufficient as to the Defendant

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City of Reno. The liability of the City can only be found in an unconstitutional

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custom, policy, or practice of its police officers arresting people without probable

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cause or of deliberate indifference to serious medical needs of persons in police

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custody.

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In the First Cause of Action of the SAC, Plaintiff alleges in conclusory and

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formulaic fashion that in doing the acts alleged, Hartshorn and Barnes acted in

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accordance with custom and policy of all the defendants. The Second Cause of

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Action of the SAC makes no reference to any custom, policy, or practice of the

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City at all.

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In our previous order (#40), we carefully analyzed the requirements of

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pleading an action against a municipal entity such as the City of Reno. Insofar as

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the Defendant City of Reno is concerned, the SAC did not respond to the issues

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raised in our previous order. The pleading of the First and Second Causes of

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Action simply do not plead an action for municipal liability. The one conclusory

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allegation mentioned above is inadequate to do so.

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The other two remaining undismissed state supplemental claims, the Fifth
Cause of Action as to negligence and the Sixth Cause of Action for negligent
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infliction of emotional distress are aimed at Defendants Hartshorn and Barnes,

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but on the basis of the present pleading, the Motion to Dismiss (#44), the

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opposition, and reply we are unable to determine if the City is liable as well on

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these state law claims but from our perspective we conclude might be. The City,

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therefore, at this point in the proceedings, will remain as a Defendant with

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respect to the Fifth Cause of Action for negligence and the Sixth Cause of

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Action for negligent infliction of emotional distress.

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DEFENDANTS’ MOTIONS TO STRIKE

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SUBSTITUTION OF CITY OF RENO FOR RENO POLICE DEPARTMENT

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REFERENCE TO OFFICIAL CAPACITY OF DEFENDANTS

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The SAC contains allegations against the Reno Police Department which

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have been dismissed with prejudice from the action because it is not a separate

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legal entity that may be sued. The Reno Police Department is simply a part of the

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City of Reno. The allegations in the pleadings with respect to the Reno Police

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Department are considered by the Court to be made in reference to the City of

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Reno. In the event that the SAC is referred to at trial, in each case where

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reference is made to the Reno Police Department, the reference instead shall be

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considered to be made to the City of Reno.

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Defendants’ motion to strike (#44) on this issue is GRANTED with respect
to references to the Reno Police Department on the foregoing basis.
IT IS HEREBY FURTHER ORDERED that Defendants’ motion to strike

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(#44) reference to the conduct of Hartshorn, Barnes, and Poehlman as acting in

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their official capacities is GRANTED. Such references are stricken from the

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SAC and shall not be referred to in the future proceedings in the case. Color of

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law is a term of art and does not require an employee of the City to act in an

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official capacity. Claims based on official capacity against these Defendants are

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duplicative of those made against the City.
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IT IS THEREFORE HEREBY FURTHER ORDERED that Defendants’

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Motion to Dismiss (#44) Plaintiff’s Second Amended Complaint (SAC) is

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GRANTED and DENIED on the bases set forth above as follows:

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(1)

DENIED as to the First Cause of Action;

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(2)

DENIED as to the Second Cause of Action;

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(3)

GRANTED as to the Third Cause of Action;

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(4)

GRANTED as to the Fourth Cause of Action;

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(5)

DENIED as to the Fifth Cause of Action;

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(6)

GRANTED as to the Sixth Cause of Action for intentional infliction

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of emotional distress;

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(7)

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DENIED as to the Sixth Cause of Action for negligent infliction of
emotional distress;

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(8)

GRANTED as to the Seventh Cause of Action;

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(9)

GRANTED as to the Eighth Cause of Action;

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(10) GRANTED as to the Ninth Cause of Action.

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IT IS FURTHER ORDERED that Defendant Poehlman is dismissed

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entirely from this action.

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IT IS FURTHER ORDERED that Plaintiff’s motion to be permitted to file

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a third amended complaint is DENIED. The Court in its previous Order (#40)

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carefully analyzed and explained the deficiencies of the FAC. Plaintiff had broad

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discretion to file the SAC addressing these matters. There is no indication in

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Plaintiff’s further filings which would indicate that there are additional facts or

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contentions which would enable Plaintiff to cure the deficiencies of the SAC

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which we have noted in our orders. We find further amendment of the complaint

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would be futile.

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Dated this 18th day of August 2011.

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_____________________________
EDWARD C. REED, JR.
United States District Judge

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