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Frank v. City of Henderson

United States District Court, D. Nevada

September 8, 2014

Colonel Robert Frank, et al., Plaintiffs,
City of Henderson, et al., Defendants.


JENNIFER A. DORSEY, District Judge.

This lawsuit challenges the City of Henderson's February 2010 initiation of criminal charges against two members of the Sun City Anthem Community Association who reported their HOA to the Henderson Police Department for failing to "refund surplus money to individual homeowners." Doc. 1. Plaintiffs allege a § 1983 civil rights claim and various state-law torts against the City of Henderson, its Police Chief Jutta Chambers, and investigating officer Sergeant Jeffrey Farley. They seek to redress their alleged unlawful arrest, false imprisonment, and the emotional experience of being forced to perform a "perp walk" through the Henderson Police Department after Sergeant Farley offered a false affidavit for their arrest. Doc. 1.

Defendants move to dismiss this case, arguing that plaintiffs' state-law claim for malicious prosecution claim is implausible and that all other claims are barred two-year statutes of limitations. Doc. 1. I find that plaintiffs' federal claims as pled ripened by February 10, 2010, were time-barred when plaintiffs filed them more than two years later in November 2012, and must be dismissed. To the extent that plaintiffs also intended to plead a federal malicious prosecution claim under § 1983, they failed to do so; if they can plead the facts to support such a claim, they have 20 days leave to amend. In the meantime, as I do not intend to exercise jurisdiction over the pendent state-law claims if no federal claim remains, [1] I deny the rest of the motion to dismiss without prejudice.


Plaintiffs Colonel Robert Frank and Tim Stebbins belonged to the Sun City Anthem Community Association (HOA), a group of homeowners in a planned senior citizen community in Henderson, Nevada. When the HOA's President and Secretary circulated a resolution adopting a tax-planning approach for the accounting of HOA income in 2007-an approach that Frank and Stebbins characterized as unlawful-Frank and Stebbins reported the HOA's action to the Henderson Police Department (HPD). After investigating the claim, HPD Sergeant Jeffrey Farley concluded not only that the HOA had acted lawfully, but that Frank and Stebbins had violated NRS 207.280, which makes it a misdemeanor to falsely reporting a crime; Farley submitted an affidavit for a warrants against Frank and Stebbins.

On February 8, 2010, the Henderson Municipal Court found probable cause to issue the warrants for the arrest, and criminal proceedings commenced against Frank and Stebbins on February 9, 2010. Doc. 18 at 5. On February 10, 2010, they were subjected to a "walk through booking" at the Henderson Detention Center, which plaintiffs characterize as a "perp walk." Doc. 1 at 12.

In January 2011, the IRS demanded the HOA pay more than $1 million in 2007 income taxes. Doc. 1. On March 15, 2012, the special prosecutor assigned to the criminal case against Frank and Stebbins dismissed the charges against them. Id. at 13.

On November 16, 2012, Frank and Stebbins sued the City of Henderson, Farley, and HPD Chief Chambers for civil rights violations under 42 U.S.C. § 1983, [2] and under state law theories including malicious prosecution, intentional infliction of emotional distress, defamation, false light, false arrest, and false imprisonment. Doc. 1. They allege that Farley's affidavit was rife with "false and misleading statements" that resulted in the issuance of arrest warrants against them. Id. at 8-12. They contend "were unlawfully arrested, falsely imprisoned, and forced to perform a perp walk' as a result of Sgt. Farley's false [a]ffidavit and Chief Chambers... and [the] HPD's failure to properly investigate police reports, and supervise and train its employees and its failure to promulgate and enforce appropriate policing policies concerning the arrest of citizens who file criminal complaints against officers of homeowners associations." Id. at 12-13.

Defendants now move to dismiss all claims. They acknowledge that the malicious prosecution claim is timely, but they contend that it is insufficiently pled to withstand Rule 12(b)(6) dismissal. They assert that all other claims are time-barred because they arise out of February 2010 conduct and are subject to a two-year statute of limitations that expired nine months before this action was filed in November 2012. Doc. 10. Plaintiffs argue that their § 1983 claim includes a malicious prosecution theory that did not ripen until charges were dismissed in March 2012, and that theory was pled well within the two-year statute-of-limitation period. Doc. 18 at 9-12. They also contend that all other aspects of their § 1983 claim and their state-law claims should be saved by equitable tolling while the criminal charges were pending. Id. at 13, 18.

I find this motion appropriate for disposition without oral argument[3] and that plaintiffs' federal claims are time-barred and must be dismissed. If plaintiffs intended to plead a malicious prosecution theory as part of their § 1983 claim, that intention is not apparent from their complaint.[4] In the interest of fairness, before I exercise my discretion under 28 U.S.C. § 1367(c)(3) to dismiss the remaining state-law claims, I allow plaintiffs 20 days to file an amended complaint to plead a new § 1983 malicious prosecution claim. I deny all remaining aspects of defendants' motion to dismiss without prejudice.


Federal Rule of Civil Procedure 8(a) governs the standard for pleadings in a federal cause of action, and requires that "[a] pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction....; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." A district court may dismiss a complaint brought under Rule 8(a) for failing to state a claim upon which relief can be granted. Fed. R. Civ. Proc. 12(b)(6).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[A] plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court is also "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoting Papsan v. Allain, 478 U.S. 265, 286 (1986)). To state a "plausible" claim for relief, the plaintiff must "plead[] factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678-79. This requires a plaintiff to state "enough facts to raise a reasonable expectation that discovery will reveal evidence" of the allegations charged. Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Twombly, 550 U.S. at 556).[5]

"A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when the running of the statute is apparent on the face of the complaint.'" Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). "[A] complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of ...

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