Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Alfred v. Gillespie

United States District Court, D. Nevada

August 6, 2014

WILLIAM LLOYD ALFRED, JR., Plaintiff(s),
v.
DOUG E. GILLESPIE, et al., Defendant(s).

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant Las Vegas Metropolitan Police Department's motion to dismiss. (Doc. # 25). Plaintiff William Lloyd Alfred, Jr. filed a response in opposition, (doc. # 28), and defendant filed a reply, (doc. # 29).

I. Background

In this case, plaintiff asserts claims of violations of his civil rights pursuant to the Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. Plaintiff also asserts claims of false imprisonment, defamation, and slander.

II. Legal Standard

A court may dismiss a 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.

The Ninth Circuit addressed post- Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, "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." Id.

III. Analysis

Defendant filed a motion to dismiss arguing, inter alia, that plaintiff's claims are barred by the statute of limitations. Section 1983 provides a cause of action through which individuals may raise claims against state officers for constitutional violations. "Because ยง 1983 does not contain a statute of limitations, federal courts apply the forum state's statute of limitations for personal injury claims." Johnson v. State of Cal., 207 F.3d 650, 653 (9th Cir. 2000). The Nevada statute of limitations for a personal injury claim is two years. NRS 11.190(4)(e). Additionally, the Nevada statute of limitations for slander and false imprisonment claims is also two years. NRS 11.190(4)(c).

Plaintiff's complaint refers to events that occurred on September 2, 2004, October 13, 2004, August 2, 2007, October 25, 2007, July 8, 2008, August 1, 2008, and September 18, 2008. Plaintiff filed this suit on March 26, 2013. Due to the fact that this suit was filed outside the two year statute of limitations, plaintiff's claims are time barred.

Because failure to conform to the statute of limitations cannot be corrected through amendment, the court will dismiss count one with prejudice. Furthermore, the court previously struck count two. (Doc. # 20). Therefore, the court will dismiss the complaint in its entirety.

IV. Conclusion

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Las Vegas Metropolitan Police Department's motion to dismiss, (doc. # 25), be, and the same hereby is, GRANTED.

IT IS FURTHER ORDERED that the complaint is DISMISSED WITH PREJUDICE.

The clerk is instructed to enter judgment accordingly and close the case.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.