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Fakoya v. County of Clark

United States District Court, D. Nevada

October 8, 2014

Victor Fakoya et al., Plaintiffs
County of Clark, Defendant.


JENNIFER A. DORSEY, District Judge.

This § 1983 civil-rights action arises out of multiple criminal and civil proceedings against Victor Fakoya, who was acquitted in Nevada state court of murdering a two-year-old boy whose family was living with the Fakoyas. Victor and Lola Fakoya, and their two minor daughters who sue through Lola Fakoya, bring this action against Clark County for civil-rights violations and state-law torts that they claim the District Attorney's ("DA") office and Child Protective Services ("CPS") committed in investigating and prosecuting Mr. Fakoya. Clark County seeks to dismiss the Fakoyas' claims. It argues that the DA and CPS enjoy absolute immunity because the challenged conduct is the result of discretionary, prosecutorial or quasi-prosecutorial decisions.[1] And even if absolute immunity does not apply, the County contends, the Fakoyas' allegations are "legally unsupportable" and must be dismissed under Rule 12(b)(6).[2] Having considered the parties' filings, their oral arguments, and the relevant law, I deny the 12(b)(6) motion to dismiss and grant in part and deny in part the 12(c) motion to dismiss for the reasons below.[3]


Victor Fakoya and his family are Nigerian immigrants.[4] After they moved to Las Vegas, they hosted another immigrant family with a two-year-old son, who died while home with Mr. Fakoya. The Nevada DA's office investigated Mr. and Mrs. Fakoya for the child's death, charged Mr. Fakoya with murder, and brought no charges against his wife. He stood trial twice in Nevada state court: the first jury hung and the second acquitted him. Mr. Fakoya spent two years in pretrial detention because he could not afford to post bond. He returned home on December 21, 2010. Mr. Fakoya was removed from his home again on December 23, 2010, and Clark County initiated family-court proceedings against him on January 6, 2011, arguing under the lower civil standard that his parental rights should be terminated because of the alleged murder. A post-deprivation hearing occurred the second week in January.

For more than five months after he was removed from his home, Mr. Fakoya was permitted supervised visitation with his children, which Mrs. Fakoya oversaw. The Fakoyas allege that officials from the DA's office and CPS used coercive tactics to elicit an admission from Mr. Fakoya that he murdered the two-year-old boy-and they advised Mrs. Fakoya that she must either divorce her husband or lose custody of their daughters.

The Fakoyas believe civil proceedings were initiated against Mr. Fakoya in retaliation for his acquittal and for comments on his criminal trial. The Fakoyas also allege that the DA's office opposed Mr. Fakoya's effort to seal his criminal record-a routine procedure after an acquittal. He has been permitted to return to his family, but whether the civil proceedings have concluded is unclear from the complaint.


Two motions to dismiss are before the court: one under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted and one under Rule 12(c) for judgement on the pleadings.[5] I consider each motion in turn.

I. Rule 12(b)(6) Motion to Dismiss

Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The purpose is to afford defendants fair notice "of what the... claim is and the grounds upon which it rests."[6] Defending a complaint against a Rule 12(b)(6) attack "requires more than labels and conclusions"; it calls on plaintiffs to plead factual allegations "enough to raise a right to relief above the speculative level."[7] This requires a plaintiff to state claims raising a plausible likelihood that the defendant engaged in misconduct for which the law-and the court-can offer relief.

A plaintiff must state his claim with enough facts, which the court will take as true and construe in the light most favorable to him, to be plausible on its face.[8] Pleading facts "merely consistent with a defendant's liability" may suggest possible legal liability.[9] It does not rise to the requisite level of plausibility.[10] Bare and unsubstantiated allegations will not suffice; there must be some substance on which the court might find defendants violating the law and thereby grant a legal or equitable remedy. Courts need not accept merely conclusory claims, unwarranted factual deductions, or unreasonable inferences.[11] Complaints are only dismissed if, beyond doubt, "the plaintiff can prove no set of facts in support of the claim that would entitle" him to relief.[12]

A. Federal Claims: Absolute Immunity

The County argues that the Fakoyas fail to allege any tortious conduct beyond the DA's "activities in prosecuting and enforcing the laws within Clark County-as [it] understand[s] them."[13] The defense urges that all claims arising from the DA's conduct must be dismissed because absolute immunity covers prosecutorial actions.[14] Similarly, the County argues that "CPS was involved in doing the exact same actions, within their realm of authority, " as the DA was, making absolute immunity "co-extensive" for both municipal subdivisions.[15]

There is a fundamental problem with the County's argument: "municipalities have no immunity from damages liability flowing from their constitutional violations."[16] The Fakoyas sue only the County, not any individual employee who may claim the benefit of prosecutorial-function immunity. In a line of cases dating back to 1978, the Supreme Court's "decisions make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit-either absolute or qualified-under § 1983."[17] Because Clark County is a municipality, any immunity that its prosecutors or CPS officials may enjoy does not shield the municipal entity from suit. The 12(b)(6) motion to dismiss based on immunity is denied with respect to the Fakoyas' federal claims.

B. State Claims: Civil Immunity

In its 12(b)(6) motion, the County also argues that CPS should be immune from civil liability for the Fakoyas' state-law claims under Nevada Revised Statute § 432B.160.[18] This statute shields the person who "makes a report, conducts an interview, takes photographs, holds or places a child in protective custody, refers a case or recommends the filing of a petition pursuant to NRS 432B.380, or participates in judicial proceedings resulting from a referral or recommendation"[19] when these actions are undertaken "in good faith."[20]

On a motion to dismiss, the court must take all facts as pled to be true, however credible or incredible.[21] Each state claim in the Fakoyas' complaint alleges that the County's departments acted in "retaliation" for Mr. Fakoya's acquittal, "with the intent" to cause harm, or "intentionally disregarding the [plaintiffs'] constitutional rights"-all factual allegations inconsistent with good faith.[22] And in Nevada, "good faith is a question of fact."[23] These allegations sufficiently preclude the court from applying NRS 432B.160 to dismiss these claims at this stage in the litigation.

C. Motion Disposition

As a municipality, Clark County can claim no immunity from the Fakoyas' federal claims. And the Fakoyas' allegations-which must be taken as true-are inconsistent with a finding of good faith to trigger NRS § 432B.160. Accordingly, the 12(b)(6) motion to dismiss is denied in its entirety.

II. Rule 12(c) Motion to Dismiss

The Fakoyas assert six federal claims under 42 U.S.C. §§ 1983 and 1985: due process, freedom of association, equal protection, family association, Monell municipal liability, and conspiracy to interfere with civil rights.[24] They also bring state claims under Nevada law: abuse of process, civil conspiracy, concert of action, intentional infliction of emotional distress, and loss of consortium.[25] Clark County's Rule 12(c) motion to dismiss seeks judgment on all eleven claims.[26]

Federal Rule of Civil Procedure 12(c) provides that "after the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." When a Rule 12(c) motion challenges a complaint for failure to state a claim, as the County does here, "a motion for judgment on the pleadings faces the same test as a motion under Rule 12(b)(6)."[27] Dismissal may be granted "only if it is clear" that no set of facts consistent with the allegations could support relief.[28]

A. Federal Claims

To state a claim under §1983, the Fakoyas must allege that (1) the claimed misconduct was committed under color of state law, and (2) the conduct deprived plaintiff of federal constitutional rights.[29] Municipalities cannot be held liable for the § 1983 violations of their employees under a respondeat superior theory;[30] for a municipal entity to be liable for the violation of a constitutional right, the violation must be the result of an official county policy or practice as articulated by the Supreme Court in Monell v. Department of Social Services. Under Monell, courts must "distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible."[31] A municipal entity is liable only for constitutional violations resulting from policy or custom, or the acts of its official policymakers.[32] I therefore examine the Fakoyas' federal constitutional tort claims for Monell liability.

1. Claim one: due process

The Fakoyas' first cause of action is for violations of substantive and procedural due process.[33] They allege that the County violated their rights in "refiling the original petition for child abuse and wrongful death of the two year old without lawful justification, " persisted in this conduct after they "knew or should have known" of Mr. Fakoya's innocence, and employed coercive tactics that would have led to false information if Mr. Fakoya had wrongly admitted to ...

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