United States District Court, D. Nevada
NANA - I AM, MIGUEL BARRAZA, DINORAH BARRAZA, JUDITH YANETH BARRAZA, ROBERT STEVEN McMINN, JUNIOR, Plaintiffs,
COUNTY OF CLARK, CITY OF LAS VEGAS, LAS VEGAS METROPOLITAN POLICE DEPARTMENT, JOSEPH LOMBARDI, J. MARTINEZ, P. ZARAGOZA, NICK FARESE, KENNETH MEAD, D. KING, J. LAROSA, M. MADLAWD, THE GOLDEN TEAM REAL ESTATE - KELLER WILLIAMS, J.J. CASPER, AMERIGAS, FERRELL GAS, SUBURBAN GAS, BRENDA MOORE-FLANK, FOX NEWS CHANNEL 5, AND DOES 1 THRU 25, Defendants.
ORDER (Defs' Motions to Dismiss - ECF Nos. 5, 12,
15, 16, 17, 18, 20, 24)
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
filed this suit alleging a number of civil rights violations,
torts, and criminal acts committed against them by 18 named
defendants and an unknown number of Doe defendants. (ECF No.
1.) To date, no proof of service has been filed for 6
Defendants. (ECF No. 34.) Each of the remaining 12 Defendants
has filed a motion to dismiss. (ECF Nos. 5, 12, 15, 16, 17,
18, 20, 24.) Several Defendants also joined in their
co-defendants motions to dismiss. (ECF Nos. 26, 29, 30.)
Plaintiffs have not responded to any of these motions. For
the reasons below, the motions are granted.
55-page complaint, though difficult to understand and filled
with irrelevant digressions, seems to center on a dispute
about whether they were the lawful occupants of a home in Las
Vegas. The dispute led to confrontations with a number of Las
Vegas Metropolitan Police Department (“LVMPD”)
officers, a neighbor, real estate agents, public utilities,
and a local news station.
facts according to the Complaint are as follows. On March 5,
2016, Plaintiff Nana - I AM gave Plaintiffs Miguel and
Dinorah Barraza a “key along with a lawsuit and a
lease” to a home in Las Vegas. (ECF No. 1 at 7.) When they
first entered the home, Plaintiffs set off an alarm, and a
representative from the alarm company arrived and contacted a
real estate agent. (Id.) That evening unnamed police
officers arrived at the home and inquired about
Plaintiffs' presence. Plaintiffs showed the officers
“their paperwork” - perhaps meaning the lease and
lawsuit mentioned above - and the officers left.
(Id.) Plaintiffs also allege (and it is unclear if
they are referring to the same event or a separate one) that
Defendant Officers Larosa and Madlawd contacted Mr. Barraza
at his home and asked him questions regarding a report that
he had threatened the officers. Plaintiffs allege that Larosa
and Madlawd trespassed when they came to the door because no
trespassing signs are posted on the property. (Id.
next day unnamed police officers arrived again and asked Ms.
Barraza for permission to enter the home. Ms. Barraza granted
the officers permission to enter, and the officers asked
about a stove that had been installed by the real estate
agent. (Id. at 7-8.)
later, police once again came to the home. This time,
Plaintiffs have identified Defendant Detective Jose Martinez
as one of the officers. (Id. at 8.) Detective
Martinez told Plaintiffs that he believed the paperwork they
had produced to show their right to be in the home was
fraudulent. (Id.) Plaintiffs allege that Detective
Martinez believed the papers were fraudulent because they
were signed by a Mexican. (Id.) Detective Martinez
then asked Mr. Barraza if he could ask him a few questions,
and further informed Mr. Barraza that he could stop the
conversation whenever he wanted. (Id. at 8-9.)
Detective Martinez asked Mr. Barraza for permission to enter
the home, which Mr. Barraza granted. (Id. at 9.)
Detective Martinez asked questions about Plaintiffs'
presence in the home. He repeated “the same questions
over and over again but in different ways.”
(Id.) After about two hours, Mr. Barraza decided to
stop answering questions. Plaintiffs allege that Detective
Martinez became upset and told Mr. Barraza's daughter:
“If she thinks that her and her parents are going to
move from North Las Vegas to an area like this and into a
house like this, she should think again.”
(Id.) Detective Martinez also told Plaintiffs that
he was going to continue to investigate the law suit and
lease, and if he determined that they are fraudulent, he
would return to arrest them. (Id.)
next day a representative from the power company came to the
home and disconnected the power. Plaintiffs allege the real
estate agent arranged for the power to be turned off.
(Id.) Plaintiffs also allege the real estate company
called Defendants AmeriGas and Ferrel Gas Company and
instructed them to refuse service to Plaintiffs.
Additionally, Plaintiffs allege a real estate agent
approached an employee from Defendant Suburban Gas,
had come to the home, and instructed him to similarly refuse
service. (Id. at 9-10.)
Barraza stayed in the house for three weeks without any gas
or electricity. (Id. at 10.) At an unspecified date,
police officers returned at 1:00 a.m. and asked Mr. Barraza
what other people were staying in the home and about the ages
of his children. As the officers left, they indicated that
child protective services (“CPS”) would be
checking on Mr. and Ms. Barraza's children.
(Id.) The following day CPS stopped at the home and
left a business card in the door after nobody answered.
(Id.) A few days later, a case worker met with the
Barraza's children at their school, and later with the
Barrazas themselves. (Id. at 11.)
another unspecified date, Plaintiffs allege that Golden Team
Real Estate - Keller Williams (“Keller Williams”)
contacted the Barraza's neighbor, Defendant Brenda
Moore-Flank and Defendant Fox News Channel 5 (“Channel
5”) “to continue their dirty work.”
(Id. at 12.) Channel 5 came to the home seeking to
interview Plaintiffs and left a card. (Id.) Nana I -
AM contacted Channel 5 and informed them that Plaintiffs were
not interested in speaking with them. Though the complaint is
not entirely clear, it seems that Channel 5 may have aired a
report that included Moore-Flank alleging Plaintiffs were
squatters and were involved in drug trafficking.
(Id. at 12-13.)
11, 2016, Detective Martinez returned and arrested
Plaintiffs. Plaintiffs allege that Detective Martinez did not
show them a warrant and that no weapon or drugs were found in
the home. (Id. at 13.) Plaintiffs alleged that
officers ransacked the house and handcuffed the Barraza's
fifteen-year-old son for nearly two hours. (Id. at
17.) According to Plaintiffs, Channel 5 was filming during
the arrest and search. (Id.)
were then taken to Clark County Detention Center and kept in
restraints for 36 hours. (Id.) Plaintiffs generally
allege that the conditions at the Detention Center, including
the food, were poor. Ms. Barraza also alleges that she
witnessed an officer kill another inmate in front of her
while she was incarcerated. (Id. at 18.)
complaint goes on to include a prayer (id. at
18-19), references to the Foreign Sovereign Immunities Act of
1976 (id. at 24), references to admiralty law
(id. at 28), Roman Curia Law (id.),
allegations of treason (id. at 29), a reference to
the emoluments clause (id), the United Nations
(id. at 30), the constitution of the American Bar
Association (id.), the Federalist Papers
(id. at 37), the Uniform Commercial Code
(id. at 43), the Declaration of Independence
(id. at 45), and dozens of court cases presented
with little or no context.
claim these allegations amount to violations of federal civil
rights law, federal criminal law, and state torts. Plaintiffs
seek $150, 000, 000 in damages, gag orders against two
defendants, restraining orders against others, and other
forms of injunctive relief. (Id. at 46-47.)
Motion to Dismiss
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 Atlantic 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, 556 U.S. 662, 678 (2009) (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “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, 556
U.S. at 678 (internal citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions are not entitled to the assumption
of truth. Iqbal, 556 U.S. at 679. Mere recitals of
the elements of a cause of action, supported only by
conclusory statements, do not suffice. Id. at 678.
Second, a district court must consider whether the factual
allegations in the complaint allege a plausible claim for
relief. Id. at 679. A claim is facially plausible
when the plaintiff's complaint alleges facts that allow a
court to draw a reasonable inference that the defendant is
liable for the alleged misconduct. Id. at 678. Where
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged - but not shown - that the pleader is entitled
to relief.” Id. at 679 (internal quotation
marks omitted). When the claims in a complaint have not
crossed the line from conceivable to plausible, the complaint
must be dismissed. Twombly, 550 U.S. at 570. A
complaint must contain either direct or inferential
allegations concerning “all the material elements
necessary to sustain recovery under some viable
legal theory.” Twombly, 550 U.S. at 562
(quoting Car Carriers, Inc. v. Ford Motor Co., 745
F.2d 1101, 1106 (7th Cir. 1989) (emphasis in original)).
notice pleading requirements of Rule 8(a) can be violated not
only “when a pleading says too little, ” but also
“when a pleading says too much.” Knapp v.
Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citing
Cafasso, U.S. ex rel. v. Gen.Dynamics C4 Sys., Inc.,
637 F.3d 1047, 1058 (9th Cir. 2011) (“[W]e have never
held - and we know of no authority supporting the proposition
- that a pleading may be of unlimited length and opacity. Our
cases instruct otherwise.”) (citations omitted);
McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.
1996) (affirming a dismissal under ...