United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court is the Motion to Dismiss, (ECF No. 13),
filed by Defendants Las Vegas Metropolitan Police Department
(“LVMPD”) and Officers Anthony Ash, Jonathan
Smith, John Collins, Jerrod Grimmett, Sgt. McGrath, and David
Dockendorf (“Officer Defendants”) (collectively
“Defendants”). Plaintiff Lowell Shade, Jr.
(“Plaintiff”) filed a response, (ECF No. 16), and
Defendants filed a reply, (ECF No. 17). For the reasons
discussed herein, Defendants' Motion to Dismiss is
GRANTED in part and DENIED in part.
case arises out of an alleged unlawful search and seizure
involving marijuana plants at Plaintiff's residence. At
the time of the incident, Plaintiff was a minor living with
his parents. (See Compl ¶¶ 1, 22, ECF No.
alleges that on March 19, 2011, Defendants illegally entered
and searched Plaintiff's home under the pretext of
conducting a “premises freeze.” (Id.
¶ 21). Plaintiff claims this search occurred
“without consent, exigent circumstances, or a warrant .
. . .” (Id. ¶ 11). Using information
obtained in this search, Plaintiff alleges that Defendant
Grimmett acquired a search warrant from Justice of the Peace
Melanie Tobiasson. (Id.).
acquiring this warrant, Plaintiff asserts that
“Defendant Grimmett deliberately omitted exculpatory
information from [the] search warrant to mislead the
magistrate.” (Id. ¶ 12). Specifically,
Plaintiff alleges that Defendant Grimmett: (1) omitted that
Defendant Ash lied to Plaintiff's parents to gain entry
into the residence; and (2) omitted that Plaintiff's
parents had a “physician's exemption to grow an
excess number of medical marijuana plants.”
(Id. ¶¶ 12, 13). Plaintiff further alleges
that “Defendant Grimmett falsely stated that
[Plaintiff's parents'] cultivation of medical
marijuana plants was ‘in excess of the Nevada
law.”' (Id. ¶ 13). Absent these
misrepresentations, Plaintiff alleges that Defendants
“lacked probable cause to believe a crime had been
committed.” (Id. ¶ 14).
obtaining the warrant, Plaintiff alleges that Defendants
“illegally searched Plaintiff's residence in
violation of [his] Fourth Amendment Rights.”
(Id. ¶ 23). During this search, Plaintiff
claims he was “held inside the residence by the
Defendants. . . while the Defendants displayed their firearms
and weapons.” (Id. ¶ 24). According to
Plaintiff, Defendants “maliciously executed the illegal
search warrant because LVMPD has de facto policies
to ignore Nevada's medical marijuana statutes and violate
the constitutional rights of medical marijuana patients and
their family members.” (Id. ¶ 15).
April 15, 2016, Plaintiff filed his Complaint before this
Court, alleging two causes of action: (1) Unlawful search and
seizure in violation of 42 U.S.C. § 1983 and the Fourth
Amendment; and (2) Monell violation under 42 U.S.C.
§ 1983. (Id. ¶¶ 20-35). On May 27,
2016, Defendants filed the instant Motion seeking dismissal
on both of Plaintiff's claims. (Mot. to Dismiss, ECF No.
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
Unlawful Search and Seizure in Violation of 42 U.S.C. §
sustain an action under section 1983, a plaintiff must show:
(1) that the conduct complained of was committed by a person
acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or
statutory right.” Wood v. Ostrander, 879 F.2d
583, 587 (9th Cir. 1989). In the Complaint, Plaintiff appears
to advance four separate theories to support his claim for
unlawful search and seizure. These include: (1) illegal entry
under a false pretext; (2) judicial deception to obtain an
invalid warrant; (3) illegal search of Plaintiff's
residence; and (4) illegal seizure of Plaintiff's person.
The Court addresses the sufficiency of each theory in turn.
Illegal Entry Under a False Pretext
alleges that Defendants “made unlawful entry into
Plaintiff's residence without consent, exigent
circumstances, or a warrant, ” and such entry occurred
“under the pretext of conducting a premises
freeze.” (Compl. ¶¶ 11, 21). Additionally,
Plaintiff alleges that “Defendant Ash lied to the
Plaintiff's parents in a ruse to gain entry into the
residence.” (Id. ¶ 12).
Fourth Amendment bars only those searches and seizures that
are unreasonable. Skinner v. Railway Labor
Executives' Assn., 489 U.S. 602, 613 (1989). In
general, the search of a house or office is not reasonable
without a warrant issued on probable cause. Maryland v.
Buie, 494 U.S. 325, 331 (1990). However, there are
certain circumstances where the public interest is such that
a warrant is not required. Id. For instance, police
may enter a home without a warrant where they possess
probable cause and exigent circumstances exist. Murdock
v. Stout, 54 F.3d 1437, 1440 (9th Cir. 1995). Exigent
circumstances include “those circumstances that would
cause a reasonable person to believe that entry . . . was
necessary to prevent physical harm to the officers or other
persons, the destruction ...