United States District Court, D. Nevada
before the court is defendant Boulder City Police
Department's (“BCPD”) motion to dismiss. (ECF
No. 9). Plaintiff John Hunt has not filed a response, and the
period to do so has since passed.
civil rights action under 42 U.S.C. § 1983 arising from
an arrest that occurred during a pedestrian crosswalk
enforcement sting in Boulder City on June 8, 2016. (ECF No.
alleges that defendant sergeant John Glenn, a BCPD officer,
violated his First, Fourth, Fifth, and Sixth Amendment rights
by wrongfully arresting and charging plaintiff with
violations of NRS 484B.283 and 199.280.3. (ECF No. 1).
30, 2017, plaintiff filed the underlying complaint against
defendants Boulder City, BCPD, and Glenn, alleging sixteen
causes of action: (1) violation of free speech and due
process against Glenn; (2) search and seizure violation
against Glenn; (3) excessive force against Glenn; violation
of Fourth and Fourteenth Amendments against Glenn; (5)
violation of due process against Glenn; (6) violation of
Article I, Sections 1 and 9 of the Nevada Constitution
against Glenn; (7) malicious prosecution against all
defendants; (8) abuse of process against all defendants; (9)
false arrest and imprisonment against all defendants; (10)
excessive force against all defendants; (11) assault and
battery against all defendants; (12) intentional infliction
of emotional distress against all defendants; (13) negligent
infliction of emotional distress against all defendants; (14)
negligence against all defendants; (15) respondeat
superior liability of Boulder City for state law
violations; and (16) negligent hiring and supervision against
Boulder City and BCPD. (ECF No. 1).
instant motion, BCPD moves for dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6), arguing that BCPD does not
have the power to sue or be sued in its own name. (ECF No.
may dismiss a 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);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, 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.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
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. (internal quotation marks
omitted). 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 stated, in relevant
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 ...