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Moonin v. State of Nevada ex rel. Its Dep't of Pub. Safety Highway Patrol

United States District Court, D. Nevada

April 15, 2013

MATT MOONIN; DONN YARNALL; and ERIK LEE, Plaintiffs,
v.
STATE OF NEVADA, ex rel. its DEPARTMENT OF PUBLIC SAFETY HIGHWAY PATROL; LAS VEGAS METROPOLITAN POLICE DEPARTMENT; CITY OF LAS VEGAS; CLARK COUNTY; DOUG GILLESPIE, Sheriff; DAVE LEWIS; JOHN STEWART; KEVIN TICE; THOM JACKSON; JIM PETERSON; WAYNE PROSSER; CHARLES HAYCOX; BRIAN SANCHEZ; HUGH SHOOK; TODD ELLISON; ERVIN RAAB; BEN LEONARD; LUIS ZAPATA; DONALD DICE; CHRIS PERRY, individually and in his official capacity; PAT GALLAGHER; GREG ZEIL; DALE JAEGER; MEL ENGLISH; TOM HIGGINS; MARK RISPOLI; MAKOR K-9; DOES 1-9, inclusive, AND CORPORATIONS 10-14, Defendants

Decided April 13, 2013.

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For Matt Moonin, Donn Yarnall, Erik Lee, Plaintiffs: Kenneth J. McKenna, Reno, NV.

For State of Nevada Department of Public Safety, Highway Patrol Division (NHP), Chris Perry, individually and in his official capacity, Dave Lewis, Tom Higgins, Donald Dice, Ben Leonard, Ervin Raab, Hugh Shook, Charles Haycox, Wayne Prosser, Thom Jackson, Kevin Tice, Luis Zapata, Pat Gallagher, Todd Ellison, Brian Sanchez, Jim Peterson, Defendants: Cameron P. Vandenberg, Office of the Attorney General, Reno, NV; Cynthia R. Hoover, Attorney General's Office, Personnel Division, Reno, NV; Matthew A Deal, Nevada Attorney General's Office, Reno, NV.

For Las Vegas Metropolitan Police Department, Doug Gillespie, Sheriff, Mel English, Dale Jaeger, Greg Zeil, Defendants: Cynthia R. Hoover, Attorney General's Office, Personnel Division, Reno, NV; Lyssa S Anderson, Kaempfer Crowell, Las Vegas, NV.

For Clark, County Of, Las Vegas, City Of, Defendants: Cynthia R. Hoover, Attorney General's Office, Personnel Division, Reno, NV.

For Mark Rispoli, Makor K-9, Defendants: Cynthia R. Hoover, Attorney General's Office, Personnel Division, Reno, NV; Tyler J Watson, Las Vegas, NV.

OPINION

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LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.

ORDER

This is a suit concerning the Nevada Highway Patrol's (" NHP" ) K9 unit. Before the court are various defendants' motions to dismiss. Defendants Makor K-9 and Rispoli have together filed a Motion to Dismiss (#31), as have defendants Las Vegas Metropolitan Police Department (" LVMPD" ) and Zeil (#32) and defendants Gillespie, English, and Jaeger (#33). The remaining Nevada state defendants (referred to as " NHP" for reasons apparent below) have also filed a Motion to Dismiss (#38). Plaintiffs Moonin, Yarnall, and Lee have responded to each motion (##75, 76, 77, and 72, respectively) and the defendants have all replied (##82, 84, 83, and 88, respectively).

I. Facts and Procedural History[1]

This dispute concerns the creation and implementation of a canine drug detection unit (" K9 program" ) within the NHP. Plaintiffs are officers who were formerly involved in the K9 program.

Plaintiffs allege as follows:

That NHP higher-ups were against the K9 program from the start. When the K9 program finally got off the ground--thanks to the insistence of Nevada's Governor and the Director of the Department of Public Safety--these higher-ups worked to undermine and marginalize it. After Plaintiffs objected to this intentional mismanagement, NHP officials retaliated against them. As a consequence of NHP's efforts, Plaintiffs argue, NHP's K9 program engages in routine Fourth Amendment violations.

Plaintiffs Lee and Moonin are former NHP K9 troopers, and plaintiff Yarnall is the former architect of the NHP's K9 program. Defendants are, for the most part, various NHP officials led by defendant Perry. Plaintiffs allege that the NHP officials expressed their antipathy toward the K9 program in a variety of ways: by shuffling the K9 program from one umbrella department to another in an attempt to destabilize it; by requiring time-consuming and redundant training of the K9 troopers; by springing last-minute busywork on Yarnall; by tampering with Yarnall's written reports to make it seem as if Yarnall were incompetent; by deleting training records from computers; by delaying contractual payments to Yarnall and reimbursements to Lee; by accusing Yarnall of a history of excessive force complaints; by initiating baseless internal investigations; by refusing to investigate

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Plaintiffs' complaints; by insulting Moonin's dog.

Despite all this, the K9 program initially flourished, yielding impressive drug and currency seizures. The K9 program's success was due in large part to the high training standards Yarnall had implemented--standards he had erected by working longer hours and more days than his contract required.

And so the NHP officials sought to replace Yarnall's high standards with lower ones. As part of this effort, NHP officials allegedly filed false complaints against Yarnall and Lee; took files from the K9 program's offices; denied the provision of necessities like dog food; and issued orders barring dogs from the K9 program's offices. They also cried poor when K9 program officers requested resources, despite the fact that the K9 program was funded out of seized currency and despite the fact that the K9 program had seized more than enough money to keep the program going.

In 2009, Lee and Moonin began observing the toll these efforts were having. Attempts to decentralize the program and reduce training standards had led to increased Fourth Amendment violations by K9 troopers. Lee and Moonin alerted NHP officials to this, but their warnings went unheeded. When, in late 2009, the NHP officials replaced the K9 program's head with someone more pliable, the K9 troopers submitted a letter to the Director of the Department of Public Safety outlining their grievances.

This letter further roiled the waters. NHP officials eliminated the K9 troopers' ability to earn overtime; they malingered with respect to renewing Yarnall's contract; they gave Moonin unnecessary tasks.

At the end of 2010, the K9 program's last high-ranking defender, the Director of the Department of Public Safety, retired. Perry succeeded him as Director and intensified his campaign to ghettoize the K9 program. For example, while Yarnall's contract extension had been assured under the prior Director, Perry decided not to renew Yarnall's contract. Yarnall's employment with NHP ended in March 2011.

In April 2011, Perry split the K9 program into two squads including both NHP officers and LVMPD officers. During the following summer, Moonin observed a marked increase in unconstitutional searches. In particular, Moonin was alarmed at the routine practice of poking holes in packages at a FedEx sort facility so that K9 program dogs could more easily smell the packages' contents. Moonin reported this practice, but his reports did not result in any changes.

While the dogs' nose for drugs failed, the media's nose for news did not. At least five televised interviews with members of NHP and LVMPD occurred over the course of late 2011 and early 2012, centering on the unconstitutional searches and the implosion of the K9 program. Rumors spread that Moonin was the media's source.

Moonin denied these rumors, but they caused him significant grief anyway. NHP and LVMPD employees ramped up their harassment, and Moonin eventually filed a complaint with NHP's Office of Professional Responsibility. Moonin also requested a transfer out of his squad, but his request was ignored.

In September 2011, the NHP's K9 troopers--including Moonin and Lee--resigned en masse from the K9 program. They cited their objections to the training methods as well as the resulting civil rights violations. NHP placed Moonin and Lee in lower-status positions within the NHP, where they remain.

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II. Legal Standard

To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. See Mendiondo v. Centinela Hospital Medical Center , 521 F.3d 1097, 1103 (9th Cir. 2008). A complaint must contain " a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations; however, a pleading that offers only " labels and conclusions" or " a formulaic recitation of the elements of a cause of action" will not suffice. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Furthermore, Rule 8(a)(2) requires a complaint to " contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the misconduct alleged. See id . at 678-79. " The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678 (internal quotation marks and citation omitted).

In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as true. Id. (citation omitted). However, " bare assertions . . . amount[ing] to nothing more than a formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth." Moss v. United States Secret Service , 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal , 556 U.S. at 680) (alteration in original) (internal quotation marks omitted). The court discounts these allegations because they do " nothing more than state a legal conclusion -- even if that conclusion is cast in the form of a factual allegation." Id. " In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' ...


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