United States District Court, D. Nevada
JOHN A. GONZALES, et al., Plaintiff(s),
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant(s).
JAMES C. MAHAN, District Judge.
Presently before the court is defendants Las Vegas Metropolitan Police Department (hereinafter "LVMPD"), sheriff Douglas Gillespie, sergeant Langgin, officer Rose, and officer Kaplan's (collectively "defendants") motion for partial dismissal of plaintiff's second amended complaint. (Doc. # 51). Plaintiff Terresa Gonzales (hereinafter "plaintiff") filed a response, (doc. # 55), and Las Vegas Metropolitan Police Department filed a reply, (doc. # 56).
Also before the court is defendant officer Danny Rose's motion to dismiss plaintiff's second amended complaint. (Doc. # 53). Plaintiff filed a response, (doc. # 54), and officer Rose filed a reply, (doc. # 57).
This is a civil rights case brought under 42 U.S.C. § 1983. On October 19, 2012, John Gonzales, a diabetic and a stroke victim, began acting strangely after he took insulin on an empty stomach. (Doc. # 48 at 3). His wife, Terresa Gonzales, noted his behavior and called 911. (Doc. # 48 at 3).
Officers Rose and Kaplan from the LVMPD responded to the 911 call. (Doc. # 48 at 4). When the officers arrived, Mr. Gonzales was confused, "yelled profanities, " and told the officers "to leave or he would call the police." (Doc. # 48 at 4).
The officers decided to take Mr. Gonzales into custody by performing a "Legal 2000, " an involuntary emergency admission of an individual to a medical facility for evaluation. (Doc. # 51 at 2 & n.2). Officer Kaplan held Mr. Gonzales's arm, and officers Rose and Kaplan handcuffed him. (Doc. # 48 at 4). Officer Kaplan "struck" Mr. Gonzales in the face with his closed fist, causing him to lose consciousness and fall to the ground while in handcuffs. (Doc. # 48 at 4).
Since the incident occurred, Mr. Gonzales died of causes unrelated to the conduct at issue in this litigation. (Doc. # 41; Doc. # 51 at 4). His widow brings claims in his name as special administratrix of his estate. (Doc. # 48 at 2).
Plaintiff asserts the following claims: 1) use of excessive force in violation of the Fourth Amendment and section 1983 against sergeant Langgin, officer Rose, and officer Kaplan; 2) a Monell municipal liability claim against LVMPD and sheriff Douglas Gillespie; 3) an assault claim against officer Kaplan and LVMPD; 4) a battery claim against officer Kaplan and LVMPD; 5) an intentional infliction of emotional distress (hereinafter "IIED") claim against officer Kaplan and LVMPD; 6) a negligence claim against officer Kaplan and LVMPD; 7) a negligent hiring claim against LVMPD and sheriff Gillespie; and 8) a loss of consortium claim on behalf of Terresa Gonzales against all defendants.
LVMPD, sheriff Gillespie, and sergeant Langgin move to dismiss plaintiff's first, second, and seventh claims against them. Sheriff Gillespie and sergeant Langgin ask the court to dismiss them from the lawsuit. Officer Rose, whom plaintiff names in her first and eighth claims, also moves for his complete dismissal from the lawsuit.
II. Legal Standard
A court may dismiss a plaintiff's 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 Atl. 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 allow 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 it has not shown, that the pleader is entitled to relief." Id. (internal quotations and alterations 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 held:
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 ...