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Wheeler v. Henderson Police Department

United States District Court, D. Nevada

June 21, 2017

EDWARD WHEELER, Plaintiff(s),
v.
CITY OF HENDERSON, et al., Defendant(s).

          ORDER

         Presently before the court is defendant City of Henderson's (“Henderson”) motion to dismiss. (ECF No. 34). Plaintiff Alvin E. Adamson II filed a response (ECF No. 41), and Henderson replied (ECF No. 44).

         I. Introduction

         The present case concerns the shooting of plaintiff's dog, Miracle, during the execution of a search warrant at the residence adjacent to plaintiff's home on September 20, 2013. (ECF No. 30 at 5-6). The “shooting officer” was defendant Travis Snyder, a North Las Vegas Police Department (“NLVPD”) SWAT officer. (Id. at 3, 6). Snyder was among those officers with the Henderson Police Department (“HPD”) and NLVPD executing a search warrant at the residence next to plaintiff's and he was “standing guard” on an adjacent lot, directly behind plaintiff's residence at about 5:30 PM on September 20, 2013. (Id. at 5-6). The lot was separated by a cinderblock wall of sufficient height that plaintiff alleges “Miracle (or any other similarly-sized dog) could not possibly be capable of scaling it or posing any physical threat to Defendant Snyder.” (Id. at 6).

         Snyder, at some point between 5:30 and 6:30 PM, allegedly shot and killed Miracle from the other side of the cinderblock wall. (Id.). When plaintiff arrived, there were police officers at his residence. (Id.). At that time, he learned that his dog had been shot and killed. (Id.). Plaintiff collected his other dog, Mandy, and left. (Id.). Upon his return home, Miracle's body had been removed. (Id. at 7). Plaintiff called 911 and was told he could collect Miracle's body in seventy-two hours; he did so, as instructed. (Id.).

         II. Legal Standard

         The 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). Although rule 8 does not require detailed factual allegations, it does require more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, a formulaic recitation of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citation omitted). Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 678-79.

         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.” 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. When a complaint pleads facts that are merely consistent with a defendant's liability, and shows only a mere possibility of entitlement, the complaint does not meet the requirements to show plausibility of entitlement to relief. Id.

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering a motion to dismiss. Id. First, the court must accept as true all of the allegations contained in a complaint. However, this requirement is inapplicable to legal conclusions. Id. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. 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. When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

         The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court held:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Id.

         III. Discussion

         A. Federal claims

         i. Claims 3 and 4 under § 1983

         The principal framework governing municipal liability in § 1983 actions against municipalities was established in Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Under Monell, municipal liability must be based upon the enforcement of a municipal policy or custom, not upon the mere employment of a constitutional tortfeasor. Id. at 691. Therefore, in order for liability to attach, four conditions must be satisfied: “(1) that [the plaintiff] possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the ‘moving force behind the constitutional violation.'” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).

         “To prevent municipal liability . . . from collapsing into respondeat superior liability, ” federal courts must apply “rigorous standards of culpability and causation” in order to “ensure that the municipality is not held liable solely for the actions of its employees.” Board of Cnty. Comm. of Bryan City v. Brown, 520 U.S. 397, 405, 410 (1997). Thus, a municipality will only be liable when the “execution of a government's policy or custom . . . inflicts the injury . . . .” Monell, 463 U.S. at 694.

         In order to show a policy, the plaintiff must identify “a deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) ...


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