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Hodges v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

June 9, 2014

ANTOINE HODGES, et al., Plaintiff(s),


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).

I. Background[1]

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."[2]

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.

III. Discussion

A. Monell claim

Although it is titled as "42 U.S.C. § 1983 - Monell claim, " in an abundance of caution the court will treat the second cause of action as alleged against Gillespie as one seeking to hold him personally liable under Section 1983.[3]

I. Individual capacity

Title 42 U.S.C. § 1983 provides a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

For a defendant to be held liable under § 1983, the plaintiff must demonstrate that the defendant personally participated in the alleged denial of rights; in other words, there can be no liability under § 1983 based on respondeat superior or other theory of vicarious liability. Monell v. Dep't of Soc. Services of City of New York , 436 U.S. 658, 663 n.7 (1978); see also Jones v. Williams , 297 F.3d 930, 934 (9th Cir. 2002). Liability under §1983 attaches only upon personal participation by a defendant in the constitutional violation. Taylor v. List , 880 F.3d 1040, 1045 (9th Cir. 1989). A supervisor may be liable for constitutional violations of subordinates, however, if the supervisor participated in, directed, or knew of the violations and failed to act to prevent them. Id.

Here, the complaint does not assert that Gillespie personally participated in the alleged constitutional deprivation(s). The complaint likewise does not contain any facts suggesting that Gillespie directed or knew of the alleged violations of Antoine's rights and failed to act to prevent them. Accordingly, any effort to hold Gillespie liable in his individual capacity would necessarily be based upon a theory of respondeat superior , and the individual claim against him therefore fails. Monell , 436 U.S. at 663 n.7.[4]

ii. Official capacity

Claims against an individual in his official capacity are the functional equivalent of a suit against the entity of which he is an agent. Kentucky v. Graham , 473 U.S. 159 (1985). Thus, the official capacity claims against Gillespie are duplicative of those against LVMPD and are hereby dismissed as redundant. See Center for Bio-Ethical Reform, Inc. v. Los Angeles Cnty Sheriff Dept. , 533 F.3d 780, 799 (9th Cir. 2008) (Sheriff sued in "official capacity" is a redundant defendant and should be dismissed when county is also named).

B. State law claims

The third, fourth, fifth, and sixth causes of action are those for various state torts. Each claim as alleged against Gillespie fails.

Nevada law immunizes certain officers and employees of political subdivisions for the acts or omissions of other persons. In particular, "[n]o actions may be brought against (a) a sheriff or county assessor which is based solely upon any act or omission of a deputy; (b) a chief of a police department which is based solely upon any act or omission of an officer of the department..." NRS 41.0335(1)(a)-(b). Plaintiffs' claims for assault, battery, false arrest, false imprisonment, and loss of consortium seek to hold Gillespie liable for Evans' alleged acts, and are therefore bared by Nevada law.

To the extent the complaint also seeks to hold Gillespie liable under a theory of negligent hiring, training, supervision, or retention, Gillespie enjoys immunity from such a claim under Nevada's discretionary immunity statute. See NRS 41.032(2); see also Beckwith v. Pool , 2013 WL 3049070 at *6-7 (D. Nev. Jun. 17, 2013).

In addition, plaintiffs have failed to address any of these claims in their opposition to the motion to dismiss. ( See generally doc. # 12). The local rules therefore provide an additional ground upon which to grant defendant's motion with respect to the state law claims asserted against him. See LR 7-2(d) ("The failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion."); see also Ghazali v. Moran , 46 F.3d 52, 53 (9th Cir. 1995) (court may grant dismissal when a motion to dismiss is unopposed after evaluating several enumerated factors).

IV. Conclusion

The complaint fails to state a claim for which relief can be granted against this defendant. Defendant Gillespie's motion to dismiss is granted.


IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant Douglas Gillespie's motion to dismiss (doc. # 10) be, and the same hereby is, GRANTED.

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