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Shade v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

March 29, 2017

LOWELL SHADE, JR., Plaintiff,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.

          ORDER

          Glori M. Navarro, Chief Judge United States District Judge

         Pending 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.

         I. BACKGROUND

         This 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. 1).

         Plaintiff 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.).

         In 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).

         After 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).

         On 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. 13).[1]

         II. LEGAL STANDARD

         Rule 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. 1986).

         The 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.

         “Generally, 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).

         If the 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 Cir. 1992).

         III. DISCUSSION

         1. Unlawful Search and Seizure in Violation of 42 U.S.C. § 1983

         To 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.

         a) Illegal Entry Under a False Pretext

         Plaintiff 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).

         The 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 ‚Äúthose 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 ...


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