United States District Court, D. Nevada
ORDER (Def.'s Motion to Dismiss and Motion to Sever - dkt. no. 41)
MIRANDA M. DU District Judge.
Before the Court is Defendant Las Vegas Metropolitan Police Department's ("LVMPD") Motion to Dismiss Second Amended Complaint and to Sever Plaintiffs' Claims (dkt. no. 41). The Court has also considered Plaintiffs Victoria Murnane and Melissa Davis's opposition (dkt. nos. 50, 51) and LVMPD's reply (dkt. no. 52). For the reasons discussed below, the Motion to Dismiss and to Sever is denied in part and granted in part.
Plaintiffs Victoria Murnane and Melissa Davis allege that their constitutional rights were violated when they were sexually harassed by an officer acting under the color of law. The Court recited a detailed factual background in an earlier Order dismissing, with leave to amend, Plaintiffs' First Amended Complaint's ("FAC") claims against LVMPD and Gillespie. ( See dkt. no. 37.) Plaintiffs have since filed a Second Amended Complaint ("SAC") with additional factual allegations. ( See Dkt. no. 38.)
While working as a sworn peace officer for LVMPD, Defendant John Norman engaged in a series of inappropriate encounters with at least three women, pulling them over without any legal basis, and coercing them to move or remove their bras. (Dkt. no. 38 ¶¶ 13, 34.) During at least one traffic stop, Norman groped a woman's breast. ( Id. ¶ 34.) The first traffic stop occurred on June 23, 2011, when Norman pulled over Rebecca Portilla,  admittedly with no legitimate reason. ( Id. ¶¶ 35-37.) Norman proceeded to pat down Ms. Portilla, forced her to put her fingers under her bra and shake it, taunted her, and let her leave only after she had exposed her breast. ( Id. ¶¶ 40-42, 45-46.) Next, on August 19, 2011, Norman stopped Plaintiff Davis, asked her to pull down her shirt, refused Davis's request for a female officer to perform the search, and forced Davis to remove or manipulate her bra. ( Id. ¶¶ 50, 53-57.) Again, on December 11, 2011, Norman stopped Plaintiff Murnane, physically searched her, coerced or forced her to remove her bra, and groped her breasts. ( Id. ¶¶ 59, 65-67, 70.)
Murnane reported the incident to LVMPD. ( Id. ¶ 72.) In February 2012, Norman was arrested on felony charges of coercion and oppression under the color of office and misdemeanor open or gross lewdness. ( Id. ¶ 74.) Rather than terminating him, LVMPD allowed Norman to resign voluntarily in June 2012. ( Id. ¶ 75.) Norman entered into a plea agreement later that month. ( Id. ¶ 76.) In April 2013, two LVMPD officers confronted Murnane at her home about her interaction with Norman. ( Id. at 78.)
Plaintiffs allege that LVMPD officers engaged in sexual harassment and abuse both before and after Norman's transgressions. ( Id. ¶ 20.) For example, in April 1998, LVMPD Officer Michael Ramirez pleaded guilty to two counts of oppression under color of law for using the threat of arrest to force a couple to perform a sex act in front of him. ( Id . ¶ 22.) In August 2000, LVMPD's Employment Diversity Office concluded that Gregory McCurdy, an LVMPD lieutenant at the time, had made unwanted sexual comments to two women. ( Id. ¶¶ 23-24.) McCurdy received a 20-hour suspension; LVMPD promoted him to a captain position four months later. ( Id. ¶¶ 24-25.) Norman harassed at least three women between June and December 2011. ( Id. ¶¶ 35-71.) Shortly thereafter, in 2013, a grand jury indicted LVMPD Officer Solomon Coleman, after he allegedly started inappropriate relationships with women he met at crime scenes and on routine calls. ( Id. ¶¶ 26-27.) Based on this pattern of misconduct, Plaintiffs allege that LVMPD and Defendant Sheriff Douglas Gillespie failed to implement adequate policies, training, and discipline to prevent LVMPD officers from engaging in sexual harassment and abuse. ( Id. ¶¶ 28-32.) Plaintiffs further allege that LVMPD has a culture "that its officers are above the law and will not be held to full account for their actions." ( Id. ¶ 33.)
Plaintiffs initiated this action in June 2013. (Dkt. no. 1.) Pursuant to a stipulation (dkt. no. 14), Plaintiffs filed the FAC in August 2013, alleging violations of their Fourth and Fourteenth Amendment rights and several state-law tort claims. (Dkt. no. 15.) LVMPD moved to sever Plaintiffs' claims, and to dismiss Plaintiffs' claims against LVMPD and Gillespie. (Dkt. nos. 18, 19.) The Court granted dismissal with leave to amend, finding that Plaintiffs had failed to include enough factual allegations to state a plausible claim for municipal or supervisory liability against LVMPD and Gillespie, respectively. (Dkt. no. 37.) The Court's dismissal mooted LVMPD's motion to sever. ( Id. ) LVMPD again seeks to dismiss the SAC's allegations against LVMPD and Gillespie. (Dkt. no. 41.) LVMPD additionally seeks to sever Plaintiffs' claims. ( Id. at 5-6.) The Court addresses each Motion in turn.
III. MOTION TO DISMISS
LVMPD seeks to dismiss Plaintiffs' claims for municipal liability against LVMPD and for supervisory liability against Gillespie under Rule 12(b)(6), arguing that Plaintiffs have failed to state a plausible claim for relief against either Defendant.
A. Legal Standard
On a 12(b)(6) motion, the court must determine "whether the complaint's factual allegations, together with all reasonable inferences, state a plausible claim for relief." Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
When determining the sufficiency of a claim, "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party[; however, this tenet does not apply to]... legal conclusions... cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citations and internal quotation marks omitted). "Therefore, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Id. (citations and internal quotation marks omitted); see also Iqbal, 556 U.S. at 678 ("A ...