United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court is the Motion to Dismiss, (ECF No. 23),
filed by Defendants William Perez (“Officer
Perez”), Corey Gribbin (“Officer Gribbin”)
(collectively the “Officers”), Debrah Tanner
(“Tanner”), and Dr. Bradley Gruner
“Defendants”). Pro se Plaintiff Alexander Ocasio
(“Plaintiff”) filed a Response, (ECF No. 28), and
Defendants filed a Reply, (ECF No. 30). For the reasons
discussed below, the Court GRANTS Defendants' Motion to
case arises from Plaintiff's arrest for stalking a
sixteen-year-old female student, Alexis Clark
(“Clark”), while he was a student at the College
of Southern Nevada's West Charleston Campus
(“CSN”) located in Las Vegas, Nevada.
(See Am. Compl. 2:13-21, ECF No. 15). Plaintiff
alleges he met Clark during his final semester at CSN when he
was forty-six years old. (Id. 2:23-25, 3:3-7).
According to Plaintiff, “[t]he two students voluntarily
exchanged names and phone numbers and communicated
sporadically and infrequently primarily by means of
telephonic text messaging, at all times while off
campus.” (Id. 3:10-13).
text messages, “Plaintiff began to flirt with
[Clark].” (Id. 3:26-27). Ultimately, Clark
asked Plaintiff to “[l]eave [her] alone, ” and
Plaintiff alleges that he did so. (Id.).
April 27, 2014, Plaintiff alleges that he visited the CSN
computer lab and coincidentally sat “two seats
away” from Clark. (Id. 4:1-7). Plaintiff
alleges that after working for “30 minutes or so,
” Clark left the building, followed by Plaintiff
“[a]bout 2 minutes later.” (Id.
4:13-18). Believing that Plaintiff was following her, Clark
called the Las Vegas Metropolitan Police Department
(“LVMPD”) and filed a complaint with Officer
Perez, a CSN police officer, regarding Plaintiff's
behavior the next day. (Id. 5:5-7). On April 28,
2014, Plaintiff alleges that he was arrested on an unrelated
charge and released on May 1, 2014. (Id. 5:19-6:3).
On the morning of his release at approximately 3:30 a.m.,
Plaintiff alleges that, unbeknownst to him, his cell phone
called Clark's number. (Id. 6:4-12).
that day, as Plaintiff “was in the process of moving
out of his apartment, ” Officers Perez and Gribbin,
accompanied by LVMPD officers, arrested Plaintiff outside of
Plaintiff's apartment for stalking. (Id. 7:6-9,
7:24-8:6). Following his arrest, Plaintiff alleges that
Officer Gribbin, also a CSN police officer, “forwarded
his police report concerning the arrest of Plaintiff . . . to
[Tanner] the Compliance Investigator II of the Affirmative
Action Office of the College of Southern Nevada at the West
Charleston Campus and to [Gruner] (student conduct officer)
the Assistant Vice President of Student Services for
administrative action to be taken against the
Plaintiff.” (Id. 9:15-23). On May 14, 2014,
Plaintiff appeared before Tanner regarding Clark's sexual
harassment complaint against him, and on May 27, 2014,
Plaintiff before Gruner regarding the charges of student
misconduct against him. (Id. 12:26-28, 13:6-8,
alleges various constitutional violations against the
Officers for their handling of his arrest as well as Tanner
and Gruner for their handling of the student misconduct
complaints against him. (See generally id.). In the
instant Motion, Defendants seek dismissal of Plaintiff's
claims against them.
Motion to Dismiss
12(b)(6) of the Federal Rules of Civil Procedure mandates
that a court dismiss a cause of action that fails to state a
claim upon which relief can be granted. See North Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). When considering a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555) (emphasis added). In order
to survive a motion to dismiss, a complaint must allege
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Id. “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.” Id.
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion . . . .
However, material which is properly submitted as part of the
complaint may be considered on a motion to dismiss.”
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence
201, a court may take judicial notice of “matters of
public record.” Mack v. S. Bay Beer Distrib.,
798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the
district court considers materials outside of the pleadings,
the motion to dismiss is converted into a motion for summary
judgment. See Fed. R. Civ. P. 12(d); Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 925
(9th Cir. 2001).
court grants a motion to dismiss, it must then decide whether
to grant leave to amend. Pursuant to Rule 15(a), the court
should “freely” give leave to amend “when
justice so requires, ” and in the absence of a reason
such as “undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of the amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962). Generally, leave to
amend is only denied when it is clear that the deficiencies
of the complaint cannot be cured by amendment. See DeSoto
v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th
immunity protects defendants “from suit” and is
not “a mere defense to liability.” Pearson v.
Callahan, 555 U.S. 223, 237 (2009). Defendants can move
for qualified immunity at the pleadings stage because
“the ‘driving force' behind creation of the
qualified immunity doctrine was a desire to ensure that
‘insubstantial claims' against government officials
[will] be resolved prior to discovery . . . .”
Id. at 231 (quoting Anderson v. Creighton,
483 U.S. 635, 640 n.2 (1987)); cf. Butz v. Economou,
438 U.S. 478, 506 (1978) (explaining that qualified immunity
is vital “to protect officials who are required to
exercise their discretion and the related public interest in
encouraging the vigorous exercise of official
qualified immunity test is a two-pronged inquiry in which
courts must consider whether the facts alleged “make
out a violation of a constitutional right” and whether
“the right at issue was ‘clearly established'
at the time of defendant's alleged misconduct.”
Pearson, 555 U.S. at 816 (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001)). The “relevant,
dispositive inquiry is whether it would be clear to a
reasonable officer that the conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at
194-95; see also Anderson, 483 U.S. at 640
(“The contours of the right must be sufficiently clear
that a reasonable official would understand that what he is
doing violates that right.”). A court may consider the
two prongs of the qualified immunity inquiry in any order it
pleases. Pearson, 555 U.S. at 234, 239.
the first prong, courts consider whether the alleged facts,
taken in the light most favorable to plaintiff, show that
defendants' conduct violated a constitutional right.
Saucier, 533 U.S. at 201. In resolving this first
inquiry, the court determines whether the alleged facts,
taken in the light most favorable to the plaintiff, show that
defendants were reasonable in their belief that their conduct
did not violate the Constitution. Wilkins v. City of
Oakland, 350 F.3d 949, 955 (9th Cir. 2003). In other
words, even if the defendants' actions did violate the
Fourth Amendment, a “reasonable but mistaken belief
that [their] conduct was lawful would result in the grant of
qualified immunity.” Id. Qualified immunity
thus “provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.”
Id. (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)).
the second prong, the court determines “whether the
right was clearly established” and applies an
“objective but fact-specific inquiry.” Inouye
v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); see
Saucier, 533 U.S. at 202. It is not enough that the
general rule is established. Id. The critical
question is whether “the contours of the right were
sufficiently clear that a reasonable official would
understand that what he is doing violates the right.”
Saucier, 533 U.S. at 202. “The relevant
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.” Id. The court's “task
is to determine whether the preexisting law provided the
defendants with fair warning that their conduct was
unlawful.” Elliot-Park v. Manglona, 592 F.3d
1003, 1008 (9th Cir. 2010).