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J.D.H. v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

August 1, 2014

J.D.H., et al., Plaintiffs,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT; SHERIFF DOUGLAS GILLESPIE (individually and in his official capacity as Sheriff of the Las Vegas Metropolitan Police Department); LAS VEGAS METROPOLITAN POLICE DEPARTMENT OFFICER J. BARKER (in his individual capacity); and LAS VEGAS METROPOLITAN POLICE DEPARTMENT OFFICER M. PURCARO (in his individual capacity), Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (Dkt. #13)

ANDREW P. GORDON, District Judge.

Defendants move to dismiss the complaint. [Dkt. #13.] For the reasons set forth below, I grant the motion as to plaintiffs' Second, Third, Fifth, Sixth and Eighth Causes of Action, and denies the motion as to plaintiffs' First, Fourth, and Seventh Causes of Action. All claims against Defendant Sheriff Douglas Gillespie are dismissed.

I. Background

Plaintiff J.D.H. is a minor girl, and plaintiff Maria is her mother. This case arises from an incident in which a Chevrolet Avalanche ran over J.D.H.'s foot. Taking plaintiffs' facts as true for the instant motion, the relevant facts are set forth below. [Dkt. #1 ¶¶ 29-115]

J.D.H. was playing outside her house with other children when an ice cream truck arrived on the street. She and the other children crossed the street to the ice cream truck, which had flashing lights and a stop sign attached while it served the children. J.D.H.'s father, Inocente, was driving in his car on the same street, headed back towards the house. He stopped behind the ice cream truck and waited to turn left into his driveway.

After buying ice cream, J.D.H. and her sister stood in front of the ice cream truck, waiting to cross the street back towards the house. A young man (the "driver") was driving the Chevrolet Avalanche with a female passenger (the "passenger"). The Chevrolet came from behind the father's car at a high rate of speed, which plaintiffs estimate to be around twice the posted speed limit. Instead of stopping behind Inocente's car, the Chevrolet passed it on the right and then passed the ice cream truck on the left. While passing the ice cream truck, the Chevrolet ran over J.D.H.'s foot, knocking her to the ground and bloodying her foot.

The Chevrolet stopped, and its occupants exited the vehicle. Inocente got out of his vehicle and went to J.D.H. The driver apologized, but the passenger became aggressive and blamed J.D.H. for the accident. One of the other children fetched Maria. Maria called 9-1-1, but was upset and passed the telephone to Inocente. Inocente indicated he was not fluent in English, and the 9-1-1 operator connected him with a Spanish-speaking interpreter.

Other people gathered at the scene. After Inocente called the police, the Chevrolet drove away. Officers Barker and Purcaro arrived. The officers could not understand Inocente because neither officer spoke Spanish, and the officers did not request an interpreter. The Chevrolet driver and passenger returned to the scene on foot, and the passenger spoke with the officer in English. She initially told Officer Barker that she had been driving, but the driver eventually admitted he had been. The officers learned that the driver did not have a valid license, but they did not verify any of the driver's information or check the Chevrolet's registration. When Maria and Inocente asked the officers to get the driver's information, the officers told them they could not have it, and that the accident had been the parents' fault.

Tempers escalated, and the passenger began yelling at Maria in Spanish; Maria responded in Spanish. Maria was carrying the injured J.D.H. in her arms. Officer Barker approached Maria and pushed her with his forearm, causing her to take three steps back. Officer Barker told Maria to "shut up, " and that the accident was her fault. Maria cried and returned with J.D.H. to their residence.

Maria and J.D.H. were helped into an ambulance and left the scene. Inocente's nephew began to interpret for Inocente to the officers. Inocente asked for the driver's information from the officers, but the officers refused to provide the information, and prohibited Inocente from obtaining that information. The officers did not prepare a report, and told Inocente that if they wrote a report it would show J.D.H. at fault. Officer Barker mocked the family's Hispanic accent. The driver and passenger left without giving any information to Inocente or the officers.

Plaintiffs allege that the officers treated J.D.H. and Maria differently they treat non-Hispanics, and because they could not speak English. [Dkt. #1 ¶¶ 87, 88.] Plaintiffs allege that officers check, collect, report, and provide drivers' information in accidents that involve non-Hispanic and English-speaking children. Nevada law requires officers at the scene of an accident to check the registration of vehicles involved and to file a report with the Department of Motor Vehicles ("DMV"). Nevada law also requires drivers involved in accidents to provide information to the other persons involved. [Dkt. #1 ¶¶ 133-34.] Plaintiffs allege the officers violated those state laws, and that the officers violated the Plaintiffs' Constitutional rights.

II. Legal Standards

A. Motion to Dismiss

A properly pleaded 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 Atl. 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, 556 U.S. 662, 678 (2009). "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. To survive a motion to dismiss, a complaint must "contain[] enough facts to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 696 (internal quotation marks and citations omitted).

District courts must apply a two-step approach when considering motions to dismiss. Id. at 679. First, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences from the complaint in the plaintiff's favor. Id .; Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247-48 (9th Cir. 2013). Legal conclusions, however, are not entitled to the same assumption of truth even if cast in the form of factual allegations. Iqbal, 556 U.S. at 679; Brown, 724 F.3d at 1248. Mere ...


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