Martinez v. Las Vegas Metropolitan Police Department et al, No. 2:2020cv00618 - Document 21 (D. Nev. 2020)
Court Description: ORDER granting 4 Motion to Dismiss. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the LVMPD defendants' motion to dismiss 4 be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that Martinez's first and second causes of ac tion be, and the same hereby are, DISMISSED without prejudice. IT IS FURTHER ORDERED that Martinez's third and fourth causes of action be, and the same hereby are DISMISSED without prejudice, sua sponte for lack of jurisdiction. The clerk is instructed to enter judgment and close the case accordingly. Signed by Judge James C. Mahan on 7/29/2020. (Copies have been distributed pursuant to the NEF - HAM)
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Martinez v. Las Vegas Metropolitan Police Department et al Doc. 21 Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 1 of 9 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 BRENDA MARTINEZ, 8 Plaintiff(s), 9 10 11 Case No. 2:20-CV-618 JCM (NJK) ORDER v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant(s). 12 13 Presently before the court is defendants Las Vegas Metropolitan Police Department 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“LVMPD”), Joseph Lombardo (“Sheriff Lombardo”), Padilla Mills (“Officer Mills”) and Francisco Rivera’s (“Officer Rivera”) (collectively, “the LVMPD defendants”) motion to dismiss. (ECF No. 4). Plaintiff Brenda Martinez (“Martinez”) filed a response (ECF No. 12), to which the LVMPD defendants replied (ECF No. 15). I. Background This case involves claims under 42 U.S.C. § 1983 for alleged violations of Junior David Lopez’s (“Lopez”) Fourth and Fourteenth Amendment rights. (ECF No. 1 at 7–8). Martinez also asserts a Monell claim under 42 U.S.C. § 1983 as well as claims for negligence, assault, and battery under Nevada law. Id. at 8–14. During the early morning hours of April 6, 2018, Lopez was pulled over by Officer Mills and Officer Rivera. (ECF No. 4 at 3). Lopez was driving erratically, and Officer Mills and Officer Rivera suspected that he might be intoxicated. Id. After coming to a stop, Lopez opened his vehicle door and tossed a handgun out of the vehicle. (ECF No. 1 at 4). Lopez exited the vehicle and knelt on the ground with his hands in the air. Id. Officer Mills and Officer Rivera James C. Mahan U.S. District Judge Dockets.Justia.com Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 2 of 9 1 directed Lopez to stay away from the handgun. (ECF No. 4 at 3). Lopez reached in the 2 direction of the handgun, at which point Officer Mills and Officer Rivera shot Lopez. (ECF Nos. 3 1 at 5; 4 at 3–4). Lopez was struck twice in the upper body and collapsed. Id. Several minutes 4 later, Lopez rolled back towards his handgun while reaching his hand out towards it. (ECF No. 4 5 at 4). Officer Mills fired at Lopez again, striking him in his upper body. (ECF No. 1 at 30; ECF 6 No. 4 at 4). Lopez died from his gunshot wounds. (ECF No. 4 at 4). 7 II. Legal Standard 8 A court may dismiss a complaint for “failure to state a claim upon which relief can be 9 granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain 10 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed 12 factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of 13 the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 14 omitted). 15 “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 16 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual 17 matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation 18 omitted). 19 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 20 when considering motions to dismiss. First, the court must accept as true all well-pled factual 21 allegations in the complaint; however, legal conclusions are not entitled to the assumption of 22 truth. Id. at 678–79. Mere recitals of the elements of a cause of action, supported only by 23 conclusory statements, do not suffice. Id. at 678. 24 Second, the court must consider whether the factual allegations in the complaint allege a 25 plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint 26 alleges facts that allow the court to draw a reasonable inference that the defendant is liable for 27 the alleged misconduct. Id. at 678. 28 James C. Mahan U.S. District Judge -2- Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 3 of 9 1 Where the complaint does not permit the court to infer more than the mere possibility of 2 misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” 3 Id. (internal quotation marks omitted). When the allegations in a complaint have not crossed the 4 line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 5 570. The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 6 7 1202, 1216 (9th Cir. 2011). The Starr court stated, in relevant part: 8 First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. 9 10 11 12 13 Id. 14 III. Discussion 15 As an initial matter, Martinez agrees to voluntary dismiss the negligence claims against 16 LVMPD and Sheriff Lombardo. (ECF No. 12 at 22). Martinez does not oppose dismissal of 17 claims against Sheriff Lombardo in his official capacity while retaining claims against him in his 18 individual capacity. Id. Thus, Martinez’s remaining claims are a § 1983 excessive use of force 19 claim, a § 1983 familial relationship claim, a Monell claim, and Nevada state law assault, battery, 20 and negligence claims. (ECF No. 15 at 4–15). LVMPD moves to dismiss all claims except for 21 the state law negligence claim. (ECF No. 15 at 15). 22 A. Excessive Force and Interference with Familial Relations Claims 23 When a plaintiff brings a claim under 42 U.S.C. § 1983, government officials sued in 24 their individual capacities may raise the affirmative defense of qualified immunity. See Spoklie 25 v. Montana, 411 F.3d 1051, 1060 (9th Cir. 2005). “Qualified immunity balances two important 26 interests the need to hold public officials accountable when they exercise power irresponsibly 27 and the need to shield officials from harassment, distraction, and liability when they perform 28 their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Indeed, “[q]ualified James C. Mahan U.S. District Judge -3- Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 4 of 9 1 immunity attaches when an official’s conduct ‘does not violate clearly established statutory or 2 constitutional rights of which a reasonable person would have known.’” White v. Pauly, 137 S. 3 Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). 4 The doctrine protects government officials performing discretionary functions from 5 liability for civil damages as long as their conduct does not violate “clearly established statutory 6 or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 7 457 U.S. 800, 818 (1982). “The principles of qualified immunity shield an officer from personal 8 liability when an officer reasonably believes that his or her conduct complies with the law.” 9 Pearson, 555 U.S. at 244. Qualified immunity may apply even if the defendant makes a mistake 10 of law or acts based upon a mistake of fact. Id. at 231. 11 Deciding whether an officer is entitled to qualified immunity is a two-step inquiry. Id. at 12 232. First, the court assesses whether the plaintiff has alleged or shown a violation of a 13 constitutional right. 14 established at the time of the defendant’s alleged misconduct. Id. The Supreme Court has 15 instructed that district judges may use their discretion when deciding which qualified immunity 16 prong to address first, based upon the circumstances of the case at issue. See id. at 236. Id. Second, the court decides whether the right at issue was clearly 17 The second prong of the qualified immunity test requires a court to determine whether the 18 right plaintiff claims was violated was “clearly established.” See id. “[T]he right the official is 19 alleged to have violated must have been ‘clearly established’ in a more particularized, and hence 20 more relevant, sense: [t]he contours of the right must be sufficiently clear that a reasonable 21 official would understand that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 22 194, 202 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The dispositive 23 question is “whether it would be clear to a reasonable officer that his conduct was unlawful in 24 the situation he confronted.” Id. 25 Further, “clearly established law” may “not be defined ‘at a high level of generality.’” 26 White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 742 27 28 James C. Mahan U.S. District Judge -4- Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 5 of 9 1 (2011)).1 Indeed, “[w]ithout that ‘fair notice,’ an officer is entitled to qualified immunity.” City 2 & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1777 (2015). 3 To be clear, “[w]here the defendant raises the affirmative defense of qualified immunity, 4 the initial burden is upon the plaintiff to show that the rights were clearly established, after which 5 the defendant bears the burden of proving that his conduct was reasonable.” Shoshone-Bannock 6 Tribes v. Fish & Game Comm’n, Idaho, 42 F.3d 1278, 1285 (9th Cir. 1994) (citing Romero v. 7 Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991)). 8 In the present case, the LVMPD defendants have asserted qualified immunity regarding 9 the excessive force claims against Officer Mills and Officer Rivera. (ECF No. 4 at 6–16). Under 10 the second prong of the qualified immunity analysis, Martinez must demonstrate that the rights 11 Officer Mills and Rivera purportedly violated were “clearly established.” 12 Bannock Tribes, 42 F.3d at 1285 (citing Romero, 931 F.2d at 627). Martinez is not required to 13 provide “a case directly on point, but existing precedent must have placed the statutory or 14 constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308 (citing al–Kidd, 563 U.S. 15 731 at 741). See Shoshone- 16 Martinez argues that Shafer v. Cty. of Santa Barbara clearly establishes that the use of 17 deadly force is unreasonable in Lopez’s situation. (ECF No. 12 at 16–17). However, a close 18 reading of Shafer reveals that the crux of the question in that case is whether it was clearly 19 established law that “an officer cannot progressively increase his use of force from verbal 20 commands, to an arm grab, and then a leg sweep maneuver when a misdemeanant refuses to 21 comply with the officer’s orders and resists, obstructs, or delays the officer in his lawful 22 performance of duties.” Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1113 (9th Cir. 2017). 23 Lopez’s situation is not analogous to Shafer’s, as Shafer was armed only with water 24 balloons. See id. While irritating, water balloons do not pose a realistic threat to a law 25 enforcement officer in a manner analogous to a handgun. Shafer speaks to the use of force to 26 compel a suspect’s behavior or prevent obstruction to the lawful performance of duties. See id. 27 The Court explicitly noted in al-Kidd that it “ha[d] repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” 563 U.S. 731, 742 (2011) (citation omitted). 1 28 James C. Mahan U.S. District Judge -5- Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 6 of 9 1 Since the crux of the present case involves the use of force in response to a perceived threat, the 2 court is not persuaded that Shafer satisfies the second prong of the qualified immunity analysis. 3 As Martinez fails to demonstrate that the LVMPD defendants’ actions violated clearly 4 established law, the LVMPD defendants are entitled to qualified immunity on both the Fourth 5 and Fourteenth Amendment claims. Accordingly, the court dismisses Martinez’s foregoing 6 § 1983 claims. 7 B. Monell Claim 8 The principal framework governing municipal liability in § 1983 actions against 9 municipalities was established in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Under 10 Monell, municipal liability must be based upon the enforcement of a municipal policy or custom, 11 not upon the mere employment of a constitutional tortfeasor. Id. at 691. Therefore, in order for 12 liability to attach, four conditions must be satisfied: “(1) that [the plaintiff] possessed a 13 constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this 14 policy ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the 15 policy is the ‘moving force behind the constitutional violation.’” Van Ort v. Estate of Stanewich, 16 92 F.3d 831, 835 (9th Cir. 1996). 17 “To prevent municipal liability . . . from collapsing into respondeat superior liability,” 18 federal courts must apply “rigorous standards of culpability and causation” in order to “ensure 19 that the municipality is not held liable solely for the actions of its employees.” Board of Cnty. 20 Comm. of Bryan City v. Brown, 520 U.S. 397, 405, 410 (1997). Thus, a municipality will only 21 be liable when the “execution of a government’s policy or custom . . . inflicts the injury . . . .” 22 Monell, 463 U.S. at 694. Indeed, “[o]nly if a plaintiff shows that his injury resulted from a 23 ‘permanent and well-settled’ practice may liability attach for injury resulting from a local 24 government custom.” Id. (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) 25 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168 (1970))). 26 In order to show a policy, the plaintiff must identify “a deliberate choice to follow a 27 course of action . . . made from among various alternatives by the official or officials responsible 28 for establishing final policy with respect to the subject matter in question.” Fairley v. Luman, James C. Mahan U.S. District Judge -6- Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 7 of 9 1 281 F.3d 913, 918 (9th Cir. 2002) (quoting Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 2 1992)) (internal quotation marks omitted). Moreover, the alleged specific municipal policy must 3 be specific in order to sustain plaintiff’s § 1983 claim. See, e.g., Oklahoma City v. Tuttle, 471 4 U.S. 808, 823 (1985) (“[O]bviously, if one retreats far enough from a constitutional violation 5 some municipal ‘policy’ can be identified behind almost any such harm [(unreasonable use of 6 force)] inflicted by a municipal official”). 7 It is well settled in the Ninth Circuit that a plaintiff generally cannot establish a de facto 8 policy with a single constitutional violation. See, e.g., Christie v. Iopa, 176 F.3d 1231, 1235 (9th 9 Cir. 1999). Instead, a plaintiff’s theory must be founded upon practices of “sufficient duration, 10 frequency and consistency that the conduct has become a traditional method of carrying out 11 policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); see also McDade v. West, 223 F.3d 12 1135 (9th Cir. 2000). “[I]solated or sporadic incidents” are insufficient to enable municipal 13 liability. Trevino, 99 F.3d at 918. 14 Like municipalities, “supervisory officials are not liable for actions of subordinates on 15 any theory of vicarious liability.” Hansen v. Black, 885 F.2d 642, 645–46 (9th Cir. 1989) (citing 16 Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). In order to hold supervisors liable 17 under § 1983, there must exist “either (1) his or her personal involvement in the constitutional 18 deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and 19 the constitutional violation.” Id. at 646. 20 Martinez’s initial complaint and response to defendants’ motion do not address the issue 21 of supervisor liability or Monell liability outside of the claim that the actions of Officer Mills, 22 Officer Rivera, and other LVMPD personnel were “approved, tolerated, and/or ratified by 23 policy-making officials of LVMPD.” (ECF No. 1 at 9). As Martinez has not pleaded any further 24 facts to suggest that the LVMPD defendants’ actions during and leading up to Lopez’s traffic 25 stop are the result of a specific policy or custom, her Monell claim against the LVMPD 26 defendants fails. Thus, the court dismisses Martinez’s Monell claim. 27 ... 28 ... James C. Mahan U.S. District Judge -7- Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 8 of 9 1 C. State Law Claims 2 This court may exercise jurisdiction over state law claims pursuant to 28 U.S.C. § 1367. 3 However, § 1367(c) also authorizes the court to “decline to exercise supplemental jurisdiction 4 over a claim” in one of four circumstances: 5 (1) the claim raises a novel or complex issue of State law, 6 (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, 7 (3) the district court has dismissed all claims over which it has original jurisdiction, or 8 9 (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 10 11 Id. 12 Martinez’s remaining claims are state law assault, battery, and negligence claims. In 13 order to bring these claims before the court, Martinez “invoke[d] the supplemental jurisdiction of 14 this [c]ourt under 28 U.S.C. § 1367(a) to hear and adjudicate state law claims.” (ECF No. 1 at 15 5). However, Martinez’s federal claims have been dismissed. Thus, the court declines to 16 exercise supplemental jurisdiction over the state law claim. 28 U.S.C. § 1367(c)(3). 17 Accordingly, Martinez’s third and fourth causes of action are dismissed sua sponte. 18 D. Dismissal Without Prejudice 19 “As a general rule, ‘dismissal without leave to amend is improper unless it is clear, upon 20 de novo review, that the complaint could not be saved by any amendment.’” Sonoma Cty. Ass’n 21 of Retired Employees v. Sonoma Cnty., 708 F.3d 1109, 1118 (9th Cir. 2013) (quoting Polich v. 22 Burlington Northern, Inc., 942 F.2d 1467, 1472 (9th Cir. 1991)) (brackets omitted). Martinez’s 23 complaint is deficient, but such deficiency may be cured by amendment. Thus, the court 24 dismisses her claims without prejudice. 25 IV. Conclusion 26 Accordingly, 27 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the LVMPD defendants’ 28 James C. Mahan U.S. District Judge motion to dismiss (ECF No. 4) be, and the same hereby is, GRANTED. -8- Case 2:20-cv-00618-JCM-NJK Document 21 Filed 07/29/20 Page 9 of 9 1 2 3 4 IT IS FURTHER ORDERED that Martinez’s first and second causes of action be, and the same hereby are, DISMISSED without prejudice. IT IS FURTHER ORDERED that Martinez’s third and fourth causes of action be, and the same hereby are DISMISSED without prejudice, sua sponte for lack of jurisdiction. 5 The clerk is instructed to enter judgment and close the case accordingly. 6 DATED July 29, 2020. 7 8 __________________________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -9-
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