United States District Court, D. Nevada
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).
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).
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.).
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.
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.
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.
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
Claims 3 and 4 under § 1983
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.
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.
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) ...