United States District Court, D. Nevada
NICK M. ELTIZAM, Plaintiff,
THE CITY OF LAS VEGAS AND THE LAS VEGAS POLICE DEPARTMENT, Defendants.
ORDER PARTIALLY GRANTING CITY'S MOTION TO DISMISS
(ECF No. 13)
P. GORDON UNITED STATES DISTRICT JUDGE
Nick Eltizam has filed a civil rights complaint against the
City of Las Vegas and the Las Vegas Metropolitan Police
Department, alleging that he was "terrorized and
tortured unlawfuly (sic) for four months and six days"
after being convicted of a crime. ECF No. 4 at 3. The City
moves to dismiss the claims against it. ECF No. 13.1 will
dismiss some but not all of the claims against the City.
complaint is a rambling diatribe against the City and Metro
for what he feels was an unlawful conviction, sentence, and
incarceration. To the extent he contends he was wrongfully
convicted and sentenced, his claims must be dismissed.
"Under Heck v. Humphrey, a state prisoner
cannot recover damages in a § 1983 suit if a judgment in
favor of the plaintiff 'would necessarily imply the
invalidity of his conviction or sentence . . . unless the
plaintiff can demonstrate that the conviction or sentence has
already been invalidated.'" Guerrero v.
Gates, 442 F.3d 697, 703 (9th Cir. 2006) (quoting
Heck v. Humphrey, 512 U.S. 477, 487 (1994)). Eltizam
does not allege that his conviction or sentence has been
invalidated. Thus, he cannot maintain any claims based upon
his conviction or sentence.
the City cannot be held liable for Eltizam's allegations
about how he was treated by Metro or its officers. The City
and Metro are separate entities, and Metro is responsible for
the actions of its employees. Nev. Rev. Stat. §
280.280(4) (Metro "is responsible for the defense of any
claim and for any judgment arising out of any act or omission
to act on the part of.. . the sheriff, or any officer,
employee or agent of the department, for which a political
subdivision of the State may be held responsible . . .
this does not mean the City is completely out of this case.
Eltizam's complaint seems to also allege that the
conditions of his incarceration in the City jail violated his
constitutional rights. See, e.g., ECF No. 4 at 5
(Count II) (alleging his jail cell was pumped with "very
cold air, " he was subject to "freezing temperature
in the locked room like [he] was not human, " he was
"refused ... a second blanket, " and he was refused
toilet paper). In considering a motion to dismiss, "all
well-pleaded allegations of material fact are taken as true
and construed in a light most favorable to the non-moving
party." However, I do not necessarily assume the
truth of legal conclusions merely because they are cast in
the form of factual allegations in the plaintiffs
complaint. A plaintiff must make sufficient factual
allegations to establish a plausible entitlement to
relief. Such allegations must amount to "more
than labels and conclusions, [or] a formulaic recitation of
the elements of a cause of action."
City admits it housed Eltizam during his incarceration. ECF
No. 13 at 4:25-26. See also, ECF No. 4 at 12-14, 16
(City of Las Vegas Department of Detention and Enforcement
records of Eltizam's incarceration). Eltizam contends he
was subjected to inhumane conditions (very cold air and lack
of toilet paper) during his stay in the jail. "The
Eighth Amendment guarantees adequate
heating." "[S]ubjection of a prisoner to lack
of sanitation that is severe or prolonged can constitute an
infliction of pain within the meaning of the Eighth
Amendment."Eltizam has alleged scant but sufficient
factual allegations about the conditions of his confinement.
The pleadings of a pro se party are to be liberally
construed to do justice.
Eltizam's allegations as true (which I must do at this
stage of the litigation), the City could be liable if the
conditions of his incarceration violated his constitutional
THEREFORE ORDERED that the City's motion to dismiss (ECF
No 13) is GRANTED IN PART. The only remaining claim against
the City is Eltizam's assertion that the conditions of
his confinement in the City jail violated his constitutional
 Wyler Summit P'ship v. Turner
Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.
 See Clegg v. Cult Awareness
Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
Bell Ail. Corp. v. Twombly,
550 U.S. 544, 556 (2007).