United States District Court, D. Nevada
ANTHONY MITCHELL, et al. Plaintiffs,
CITY OF HENDERSON, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS, (Dkt. No. 17).
ANDREW P. GORDON, District Judge.
The three plaintiffs-Michael and Linda Mitchell (the "Parents") and their adult son Anthony Mitchell-filed this suit in response to events occurring in and around their respective homes at 362 and 367 Eveningside Avenue in Henderson, Nevada. The Plaintiffs allege the following facts.
Sometime between 8:30 and 9:30 a.m. on July 10, 2011, officers of the Henderson Police Department ("HPD") and the North Las Vegas Police Department ("NLVPD") arrived outside the Plaintiffs' houses in response to a domestic violence call from the wife of a neighbor, Mr. White. White telephoned Michael as the police arrived, and he left a voicemail informing Michael of the police arrival and that White's wife had told the police that he had assaulted her. Michael called White back, and White told him that White refused to exit his house to discuss the alleged abuse with the police; he contended that his one-month-old child was asleep in the house and that he could not leave the child alone. White asked the officers to come inside instead. White left the front door open and sat on his couch in view of the officers; he was apparently unarmed. The officers called for backup, which arrived in the form of additional personnel, including a SWAT team. Sirens blared, a bullhorn sounded, and SWAT officers tore a tree from the ground in White's front yard. When Michael left his house to retrieve the morning newspaper, several officers commanded him to return inside. Agitated, Michael shouted for the officers to turn their sirens off.
Around this time, the Plaintiffs began to photograph the police officers through the windows of their homes, concerned that the officers' behavior was inappropriate. The Plaintiffs intended to communicate the ongoing events to local news outlets, and the officers were aware of that intent. Doe Officers 1-10 pointed firearms at the Plaintiffs through their windows and at the homes of several neighbors. When Michael photographed Doe Officer 1-a member of the NLVPD SWAT team-through a window of Michael's home, that officer pointed his firearm at Michael.
At about 10:45 a.m., Anthony received a phone call from HPD Officer Christopher Worley, who asked Anthony to allow the police to use his house to gain a "tactical advantage" over White. Anthony rejected this request, and Officer Worley ended the call. Anthony "was extremely troubled and concerned for his safety based on Officer Worley's insistence about entering his home without a warrant, and became concerned that serious police misconduct was taking place and that armed police would attempt to enter his home without a warrant." Officers continued to point weapons at Anthony through his windows. Due to what he perceived as the recklessness with which the officers were handling loaded firearms, he put on the protective ballistic vest he used in his employment as a bail enforcement agent.
After attempting to contact a local news agency between 11:30 a.m. and shortly before noon, Anthony walked back and forth in front of his window. As he did so, Doe Officers 1-10 pointed their weapons at him. Doe Officer 2 followed Anthony's movements through the sight of his firearm. Anthony photographed Doe Officer 2 and then gave him the middle-finger gesture.
At this point Doe Officers 1-10 (including NLVPD Officers Waller and Cawthorn and HPD Officer Worley) conspired to remove Anthony from his residence and occupy it for their own use. Plaintiffs cite Officer Cawthorn's "official report" to support this conspiracy allegation:
It was determined to move to 367 Eveningside and attempt to contact [Anthony] Mitchell. If [Anthony] Mitchell answered the door he would be asked to leave. If he refused to leave he would be arrested for Obstructing a Police Officer. If [Anthony] Mitchell refused to answer the door, force entry would be made and [Anthony] Mitchell would be arrested.
Just before noon, Doe Officers 1-10 (including NLVPD Officers Waller, Albers, Cawthorn, Rockwell, and Snyder) banged on Anthony's door and "loudly yelled resident 367 come to the door.'" Surprised, Anthony called his mother and explained to her that the police were at his door. The officers then knocked down Anthony's door with a metal ram and entered his house, without a warrant or Anthony's permission. They pointed their guns at Anthony and ordered him to the floor. The officers, including Officer Snyder, addressed Anthony as "asshole" and ordered him to crawl toward them and shut his phone off. Anthony stayed huddled on the floor with his hands over his face.
Doe Officers 1-10 (including Officer Cawthorn) then shot Anthony with "pepperball" rounds at close range. Anthony was struck at least three times, causing injury and pain through both the impact of the rounds and the effects of the caustic chemical. The officers also shot Anthony's dog Sam, who had been cowering in the corner of the room, with at least one "pepperball" round. Sam panicked, howled in pain, and fled from the house. He ended up trapped in a fenced alcove in the backyard without food or water for nearly the entire day in 100-degree heat.
Doe Officers 1-10 then hung up Anthony's phone-over which his mother had been listening to the traumatic events in Anthony's home unfold-without telling Linda what was happening. The sudden hang-up caused Linda great emotional distress through the belief that Anthony had been wounded or killed. Next, the officers (including Officer Cawthorn) dragged Anthony outside, pressed him against a wall, handcuffed him, and forcibly escorted him to the Mobile Command Center. During these events, one of Doe Officers 1-10 said to Anthony, "you wanna flip us off, huh?" In apparent response, one officer said "shhhh" to another. A short time later, at the Command Center, HPD Officer Angela Walker arrested Anthony on charges of obstructing a police officer.
Multiple officers, including Doe Officers 1-10 and NLVPD Officers Waller, Albers, Rockwell, and Snyder, "then swarmed through... Anthony's home..., searching through his rooms and possessions and moving his furniture, without permission or a warrant, and then subsequently occupied it and used it as an observation post to surveil [White's] house."
Meanwhile, across the street at approximately 11:25 a.m., Doe Officers 11-20 entered the Parents' backyard without a warrant or permission. The officers led Michael from his house to the Mobile Command Center under the "guise" that he was needed to negotiate with White on the phone. Shortly after Michael left, Linda received the aforementioned call from Anthony explaining that the police were at his front door.
Approximately 30 minutes later, Doe Officers 21-30 entered the Parents' backyard, again without a warrant or permission. The officers knocked on the back door and demanded that Linda open the door. Linda complied, but told them that they could not enter without a warrant. The officers ignored her, entered through the back door, and began searching the home. Doe Officer 21 (a female) forcibly grabbed Linda, began to pull her out of the house, seized her purse and "began rummaging through it" without consent.
Next, Doe Officer 22 (a male) grabbed Linda, pulled her out of the house, and passed her off to Doe Officer 23 (a female). Doe Officer 23 dragged Linda, who was protesting, up the street to the Mobile Command Center where Michael and Anthony had been taken. Linda is "physically frail" and had difficulty breathing due to the heat and the swift pace. Doe Officer 23 ignored Linda's pleas to slow down and refused to explain why Linda was needed at the Command Center or why the police had entered her home.
Once Linda was spirited away by Doe Officer 23, Doe Officers 21-22 and 24-30 occupied the Parents' house. The officers searched through cabinets and closets and drank from the water dispenser, evidenced by about 15 newly-disposed plastic cups in the kitchen trashcan. They left the bedroom sliding glass door open and the refrigerator door ajar; they also spilled condiments on the kitchen floor. Further, they opened and searched, without a warrant or permission, two trucks parked in the Parents' driveway-one belonging to Anthony, the other to Michael.
At the Mobile Command Center, Michael attempted to return home once it was evident that White was not taking any calls from the Command Center and that the police would not allow Michael to call White from his own cell phone. The officers in the Command Center, however, informed Michael that he was not allowed to go home. Michael left the Command Center and headed down Mauve Street to exit the neighborhood. After walking for only a few minutes, an HPD patrol car pulled up next to him, and the officer inside told Michael that his wife would meet him back at the Command Center. Based on this information, Michael reversed course back to the Command Center.
Michael met Linda at the Mobile Command Center, shortly after she had witnessed Anthony's arrest. Michael attempted to again leave the Command Center to meet up with another of his sons (James) at the police barricade. But his plan was thwarted when he was arrested, handcuffed by Doe Officer 31, and placed in the back of a marked police car with the windows closed. The midday July heat quickly became dangerous and oppressive. Michael begged the officers to roll down the windows; they ignored him. One of Doe Officers 31-35 turned on the air conditioning for the front seats, but a safety partition prevented the cold air from reaching the back seats. This officer refused to open the rear air vents. Michael became desperate and afraid for his life. He "positioned himself to kick the rear door open" and "[o]nly at this time did an officer outside the vehicle open the back door and... partially roll down the windows."
Anthony and Michael were jailed at the Henderson Detention Center for the night on charges of Obstructing an Officer. They were detained for at least nine hours before being released on bond. During the jail stay, Doe Officers 36 and 37 withheld from Anthony seizure medication. Anthony submitted a prisoner grievance form requesting the medication from the jail staff or, in the alternative, that his brother be allowed to deliver the medication to the jail. That request was ignored. By 4:00 p.m., his brother delivered the medication. Although Anthony did not suffer a seizure in jail, he suffered "great fear and anxiety that he might have a seizure while in custody."
After the events of that day, Officers Worley, Walker, and Cawthorn prepared police reports containing knowingly false statements, intending that the reports would be used to prosecute Anthony and Michael. On July 13, 2011, Henderson Deputy City Attorney Janette Reyes-Speer filed criminal complaints against Anthony and Michael in the Municipal Court of the City of Henderson,  charging them with Obstructing an Officer and Failure to Obey Police Officer. In November, 2011, the criminal complaints were dismissed with prejudice. With regard to the criminal charges, the Plaintiffs allege that Doe Officers 38-45, HPD Officers Walker and Worley, and NLVPD Officer Cawthorn caused Anthony and Michael "to be jailed and caused criminal complaints to issue against them in order to violate their constitutional rights, to provide cover for Defendants' wrongful actions, to frustrate and impede Plaintiffs' ability to seek relief for those actions, and to further intimidate and retaliate against Plaintiffs."
On July 1, 2013, the Plaintiffs filed their Complaint initiating this lawsuit. On October 14, they filed their First Amended Complaint ("FAC"). The FAC names as defendants:
(1) City of Henderson;
(2) Jutta Chambers, Chief of the HPD, in her individual and official capacities;
(3) Garrett Poiner, HPD officer, in his individual and official capacities;
(4) Ronald Feola, HPD officer, in his individual and official capacities;
(5) Ramona Walls, HPD officer, in her individual and official capacities;
(6) Angela Walker, HPD officer, in her individual and official capacities;
(7) Christopher Worley, HPD officer, in his individual and official capacities;
(8) Janette Reyes-Speer, Deputy City Attorney, City of Henderson, in her individual capacity;
(9) City of North Las Vegas;
(10) Joseph Chronister, Chief of the NLVPD, in his individual and official capacities;
(11) Michael Waller, NLVPD sergeant, in his individual and official capacities;
(12) Drew Albers, NLVPD officer, in his individual and official capacities;
(13) David Cawthorn, NLVPD officer, in his individual and official capacities;
(14) Eric Rockwell, NLVPD officer, in his individual and official capacities;
(15) Snyder (first name unknown), NLVPD officer, in his individual and official capacities;
(16) Doe Officers 1-40; and
(17) Roe Corporations 1-40.
The FAC pleads twenty-two claims for relief. The first twelve are brought under 42 U.S.C. § 1983 and two related federal statutes:
(1) Retaliation in violation of the Free Speech Clause of the First Amendment, against all defendants;
(2) Unlawful arrest of Anthony Mitchell and unlawful search of Anthony's home and vehicle, in violation of the Fourth Amendment, against Doe Officers 1-10, 21-22, 24-30, Sergeant Waller, and Officers Albers, Cawthorn, Rockwell, and Snyder;
(3) Excessive force against Anthony Mitchell, in violation of the Fourth Amendment, against Doe Officers 1-10, Sergeant Waller, and Officers Albers, Cawthorn, Rockwell, and Snyder;
(4) Unlawful arrest of Michael Mitchell, in violation of the Fourth Amendment, against Doe Officers 31-35;
(5) Unlawful arrest of Linda Mitchell, in violation of the Fourth Amendment, against Doe Officers 21-30;
(6) Unlawful search of Michael Mitchell's and Linda Mitchell's home and of Michael's vehicle, in violation of the Fourth Amendment, against Doe Officers 21-30
(7) Unlawful peacetime quartering of soldiers in Michael Mitchell's and Linda Mitchell's home, in violation of the Third Amendment, against Doe Officers 21-30;
(8)(a) Unlawful punishment of Anthony, in violation of the Eighth Amendment, against Does Officers 1-10, 32, and 55;
(8)(b) Unlawful punishment of Michael, in violation of the Eighth Amendment, against Doe Officers 21, 31-35;
(8)(c) Deliberate indifference to Anthony's medical needs, in violation of the Eighth Amendment, against Doe Officers 36 and 37;
(9) Malicious prosecution, in violation of the First, Fourth, and Fourteenth Amendments, against Reyes-Speer and Officers Walker, Worley, and Cawthorn; and
(10) Municipal liability under Monell, against the City of Henderson and the City of North Las Vegas;
(11) Conspiracy under 42 U.S.C. § 1985(3), against unspecified defendants; and
(12) Neglect to prevent conspiracy under 42 U.S.C. § 1986, against unspecified defendants.
The remaining ten claims are based on Nevada state law:
(13) Assault, against unspecified defendants;
(14) Battery, against unspecified defendants:
(15) False arrest and imprisonment, against unspecified defendants;
(16) Intentional infliction of emotional distress, against unspecified defendants;
(17) Negligent infliction of emotional distress, by inference against Doe Officers 1-10, Sergeant Waller, and Officers Albers, Cawthorn, Rockwell, and Snyder;
(18) Civil conspiracy, against unspecified defendants;
(19) Abuse of process, against unspecified defendants;
(20) Malicious prosecution, against unspecified defendants;
(21) Respondeat superior, against the City of Henderson and City of North Las Vegas; and
(22) Negligent hiring, retention, supervision, and training, against the City of Henderson and City of North Las Vegas.
The Henderson Defendants moved to dismiss all of the claims against them on various grounds. (Dkt. #17.) As to the federal claims, they seek dismissal of the § 1983 claims against the individual defendants (Claims 1-9) as barred by the applicable two-year statute of limitations and for the improper use of "Doe" defendants. They contend that all claims against Chief Chambers and Officer Walls should be dismissed for untimely service of process. They further contend that all § 1983 claims against Chief Chambers should be dismissed because the Plaintiffs fail to allege her personal involvement in the alleged wrongdoing. They assert that Chief Chambers and Officers Poiner, Feola, Walls, Walker, and Worley are entitled to qualified immunity. As to all of the § 1983 claims, including the Monell claim (Claim 10) and except for the claim under the Eighth Amendment (Claim 8), the Henderson Defendants seek dismissal for failure to state a claim under Rule 12(b)(6). The Henderson Defendants also assert the failure to state a claim under Rule 12(b)(6) for the claims based on § 1985(3) and § 1986.
As to the state law claims, the Henderson Defendants argue that the court lacks supplemental jurisdiction because the federal claims fail. Next, they contend that the Plaintiffs failed to comply with the two-year statute of limitations for claims against political subdivisions, in violation of NRS § 41.036. They also assert that Chief Chambers and Officers Poiner, Feola, Walls, Walker, and Worley are entitled to discretionary immunity under NRS § 41.032. They further assert that Rule 12(b)(6) mandates dismissal of the claims for negligent infliction of emotional distress (Claim 17), abuse of process (Claim 19), and respondeat superior (Claim 21) ...