United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is defendant Douglas Gillespie's motion to dismiss (doc. # 10). Plaintiffs Antoine and Annette Hodges have responded (doc. # 12) and the defendant has replied (doc. # 13).
This matter arises out of the shooting of plaintiff Antoine Hodges by defendant Jason Evans ("Evans"). Evans is a police officer employed by defendant Las Vegas Metropolitan Police Department ("LVMPD"). Defendant Douglas Gillespie ("Gillespie") is the sheriff. Plaintiff Annette Hodges is Antoine's wife.
On or about October 21, 2013, Antoine was purchasing gas at a 7-11 convenience store in Las Vegas, Nevada. (Compl., doc. # 1, ¶ 13). Evans entered the store with his gun drawn and ordered Antoine to raise his hands, allegedly misidentifying him as a homicide suspect. ( Id. at 14). Antoine raised one hand while simultaneously attempting to place money into his pocket with the other. ( Id. ). Evans shot Antoine in the abdomen, allegedly without warning. ( Id. at 16). Antoine was not armed. ( Id. ).
As Antoine lay on the ground, Evans handcuffed him until the paramedics arrived. ( Id. at 17). Antoine was transported to University Medical Hospital where life-saving surgery was performed. ( Id. at 18).
Based on these events, Antoine and Annette assert claims for the following: (1) violation of Antoine's civil rights by Evans pursuant to 42 U.S.C. § 1983; (2) a Monell claim against LVMPD and Gillespie; (3) negligence against each defendant; (4) assault and battery against each defendant; (5) false arrest and imprisonment against each defendant; and (6) loss of consortium against "defendant."
The instant motion is brought on behalf of only defendant Gillespie, seeking to dismiss each claim against him under Rule 12.
II. Legal Standard
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2); Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009) (citation omitted). "Factual allegations must be enough to rise above the speculative level." Twombly , 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal , 129 S.Ct. at 1949 (citation omitted).
In Iqbal , the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id . at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id . at 1949. Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id . at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id . at 1949.
Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged - but not shown - that the pleader is entitled to relief." Id . (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly , 550 U.S. at 570.
A. Monell claim