Doe v. Elko County et al
Filing
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ORDER granting in part and denying in part 11 Motion to Dismiss. All claims against Defendant Torvinen in his official capacity shall be dismissed. Signed by Judge Larry R. Hicks on 01/04/2014. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOHN DOE, individually and, on behalf of a )
class of those similarly situated,
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Plaintiff,
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v.
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ELKO COUNTY, MARK TORVINEN, in his )
official capacity as District Attorney for Elko )
County,
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Defendants.
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3:13-cv-00165-LRH-WGC
ORDER
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Before the Court is Defendants Elko County and Mark Torvinen’s (“Torvinen”)
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(collectively “Defendants”) Motion to Dismiss. Doc. #11.1 Plaintiff John Doe (“Doe”) filed an
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Opposition (Doc. #19), to which Defendants have replied (Doc. #24).
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I.
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Facts and Background
This action concerns Elko County’s alleged unconstitutional prosecution of Doe in juvenile
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court for a violation of Nevada Revised Statute (“N.R.S.”) § 201.195. In connection therewith,
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Doe alleges that Torvinen, acting in his official capacity as the Elko County District Attorney,
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personally drafted and signed a juvenile delinquency petition charging Doe with violations of
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Nevada’s criminal statutes. Doc. #1, ¶ 23.
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Refers to the Court’s docket number.
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On April 2, 2013, Doe filed a Complaint against Defendants, seeking, among other
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remedies, nominal damages and declaratory relief for his alleged unconstitutional prosecution
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under N.R.S. § 201.195. See Doc. #1. Thereafter, the Nevada legislature voted to repeal N.R.S.
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§ 201.195, and on May 30, 2013, Governor Sandoval signed a repeal of the law. See Doc. #19, n.1;
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see also S.B. 388, 77th Reg. Sess. (Nev. 2013). Doe concedes that the repeal of N.R.S. § 201.195
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moots his prospective claims for injunctive and declaratory relief, but notes that the same does not
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affect his retrospective claims for the aforementioned nominal damages and declaratory relief
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based on his alleged unconstitutional prosecution. See Doc. #19, n.1.
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On May 24, 2013, Defendants filed the present Motion to Dismiss arguing that (1) Torvinen
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is entitled to absolute prosecutorial immunity and (2) Doe failed to sufficiently allege that Elko
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County had a policy, practice, or custom of enforcing N.R.S. § 201.195 such that it would be
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subject to municipal liability under 42 U.S.C. § 1983. See Doc. # 11. On August 12, 2013, Doe
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filed an Opposition. Doc. #19. Defendants did not file a Reply.
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II.
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Legal Standard
Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
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to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state
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a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading
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standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That
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is, a complaint must contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require
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detailed factual allegations; however, a pleading that offers “‘labels and conclusions’ or ‘a
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formulaic recitation of the elements of a cause of action’” will not suffice. Ashcroft v. Iqbal, 556
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U.S. 662, 678 (2009) (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. (quoting Twombly, 550
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U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the Court to
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draw the reasonable inference, based on the Court’s judicial experience and common sense, that the
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defendant is liable for the misconduct alleged. See id. at 678-79. “The plausibility standard is not
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akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has
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acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s
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liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. at
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678 (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. However, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of
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the elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret
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Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 U.S. at 681) (brackets in original)
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(internal quotation marks omitted). The Court discounts these allegations because “they do nothing
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more than state a legal conclusion—even if that conclusion is cast in the form of a factual
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allegation.” Id. (citing Iqbal, 556 U.S. at 681). “In sum, for a complaint to survive a motion to
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dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
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plausibly suggestive of a claim entitling the plaintiff to relief.” Id.
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III.
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Discussion
As a preliminary matter, the Court agrees that the repeal of N.R.S. § 201.195 moots Doe’s
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prospective claims for injunctive and declaratory relief, but does not affect his retrospective claims
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for nominal damages and declaratory relief based on his alleged unconstitutional prosecution.
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Accordingly, Doe’s claim seeking a declaration that N.R.S. § 201.195 is facially unconstitutional
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and his claims seeking injunctive relief shall be dismissed. Additionally, Doe’s claims on behalf of
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other persons similarly situated shall be dismissed. Doe’s claim pursuant to 42 U.S.C. § 1983
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seeking nominal damages for Defendants’ alleged violation of his right to equal protection under
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the Fourteenth Amendment and his claim seeking a declaration that N.R.S. § 201.195 is
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unconstitutional as applied to him shall proceed before the Court.
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A.
Absolute Prosecutorial Immunity
First, Defendants argue that the claims against District Attorney Torvinen must be
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dismissed because Torvinen enjoys absolute prosecutorial immunity from liability for his actions in
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connection with the prosecution of Doe. See Doc. #11, pp. 5-6. However, as Doe correctly avers,
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personal immunity defenses are only available when a government official is sued in his or her
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individual capacity, not when the official is sued in his or her official capacity. See Kentucky v.
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Graham, 473 U.S. 159, 165-67; see also Hartmann v. Cal. Dep’t. of Corr. and Rehab., 707 F.3d
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1114, 1127 (9th Cir. 2013). In contrast, “the only immunities available to [an official] in an
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official-capacity action are those that the governmental entity possesses.” Hafer v. Melo, 502 U.S.
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21, 25 (1991). Here, Torvinen is sued only in his official capacity as District Attorney for Elko
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County. See Doc. #1. Accordingly, absolute prosecutorial immunity is unavailable as a defense.
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However, “[b]ecause an official capacity suit against a municipal officer is equivalent to a
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suit against the government entity, the court may dismiss the officer as a redundant defendant
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where both the officer and the entity are named.” Alfred v. Gillespie, No. 2:13-CV-00519-JCM,
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2013 WL 2096452, at *2 (D. Nev. April 18, 2013) (citing Center for Bio-Ethical Reform, Inc. v.
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Los Angeles Cnty. Sheriff Dept., 533 F.3d 780, 799 (9th Cir. 2008)); see also Chavez v. Las Vegas
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Metro. Police Dept., No. 2:11-CV-01445-LRH-GW, 2012 WL 1964042, at *2 (D. Nev. May 31,
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2012) (citing the same). Accordingly, Doe’s claims against Torvinen shall be dismissed as
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redundant.
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B.
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Second, Defendants argue that under Monell v. Department of Social Services, 436 U.S. 658
Failure to State a Claim for Municipal Liability
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(1978), Elko County cannot be held liable under 42 U.S.C. § 1983 because the alleged
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constitutional violations cannot be traced to an official policy, practice, or custom of the
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municipality. Doc. #11, pp. 6-8. However, as Doe correctly avers, “a municipality can be liable
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even for an isolated constitutional violation . . . when the person causing the violation has final
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policy making authority.” Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003) (citing Christie v.
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Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999)); see also Nichols v. Hager, No. 3:04-CV-0559-LRH-
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LRL, 2012 LW 3135861, at *4-5 (D. Nev. Aug. 1, 2012) (explaining that a municipality may be
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liable for the tortious actions of its employees under Monell if “a district employee was acting as a
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final policy maker”). Whether an official has final policy-making authority is an issue of law to be
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determined by reference to state law. See Jett v. Dallas Indp. Sch. Dist., 491 U.S. 701, 737 (1989);
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City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). Nevada law designates principal district
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attorneys as the final policymaking authority for the local governments they represent with respect
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to the decision to prosecute a case. See Webb, 330 F.3d at 1166 (holding that district attorneys in
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Nevada are “final policymakers whose actions can be the acts of the municipality for the purposes
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of attaching liability under § 1983”); see also Cairns v. Sheriff, Clark Cnty., 89 Nev. 113, 508 P.2d
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1015, 1017 (1973) (per curiam) (“[t]he matter of the prosecution of any criminal case is within the
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entire control of the district attorney”) (citing N.R.S. 252.110).
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Here, contrary to Defendants’ assertion, the Court finds that Doe has sufficiently alleged a
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claim against Elko County. Specifically, the Court finds Doe’s allegations that Torvinen, acting as
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a final policymaker, personally drafted and signed the delinquency petition filed against him
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plausibly suggest municipal liability pursuant to 42 U.S.C. § 1983. See Doc. #1, ¶¶ 10, 48 (alleging
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that Torvinen has final policymaking authority for Elko County and that his decision to file charges
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against Doe for violating N.R.S. 201.195 constitutes a policy, custom, or practice of the
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municipality); see also McKenna v. San Miguel Consol. Fire Prot. Dist., 10-CV-1500 H(AJB),
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2010 WL 4392557, at *4-5 (S.D. Cal. Oct. 27, 2010) (dismissing 42 U.S.C. § 1983 claims against
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municipality where plaintiff failed to allege that any of the employees responsible for the conduct at
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issue were official policymakers). Accordingly, dismissal of Elko County for failure to state a
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claim under Federal Rule of Civil Procedure 12(b)(6) is not warranted.
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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. #11) is
GRANTED in part and DENIED in part in accordance with this Order.
IT IS FURTHER ORDERED that all claims against Defendant Torvinen in his official
capacity shall be dismissed.
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IT IS SO ORDERED.
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DATED this 4th day of January, 2014.
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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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