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Nana - I AM v. County of Clark

United States District Court, D. Nevada

March 10, 2017

NANA - I AM, MIGUEL BARRAZA, DINORAH BARRAZA, JUDITH YANETH BARRAZA, ROBERT STEVEN McMINN, JUNIOR, Plaintiffs,
v.
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

         I. SUMMARY

         Plaintiffs 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.

         II. BACKGROUND

         Plaintiffs' 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.

         The 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.[1] (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.[2] (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. at 15-16.)

         The 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.)

         A day 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.)

         The 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, [3] who had come to the home, and instructed him to similarly refuse service. (Id. at 9-10.)

         Mr. 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.)

         At 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.)

         On May 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.)

         Plaintiffs 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.)

         The 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.

         Plaintiffs 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.)

         III. LEGAL STANDARDS

         A. Motion to Dismiss

         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 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).

         In 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)).

         The 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 ...


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