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Gardener v. City of Las Vegas

United States District Court, D. Nevada

July 20, 2017

CHRISTOPHER GARDNER, individually and as heir and as Special Administrator for THE ESTATE OF ELLEN FINNIE GALLUCCI, Plaintiff,
CITY OF LAS VEGAS, a Corporate city of the State of Nevada; the LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Political Subdivision of the State of Nevada; SHERIFF JOSEPH LOMBARDO; and DOE OFFICERS I through X, and DOES XI through XX, and ROE BUSINESS ENTITIES XXI through XXX, inclusive, Defendants.



         Pending before the Court is the Motion to Dismiss, (ECF No. 12), filed by Defendants Sheriff Joseph Lombardo (“Sheriff Lombardo”) and the Las Vegas Metropolitan Police Department (“LVMPD”). Plaintiff Christopher Gardner (“Plaintiff”) filed a Response (ECF No. 19), and Defendants filed a Reply, (ECF No. 21).[1]

         I. BACKGROUND

         This case arises from alleged constitutional violations when LVMPD officers initiated a vehicular stop of Kenneth Rankin (“Rankin”), a 32-year old male, to serve a warrant upon him. (Am. Compl. ¶¶ 21-24, ECF No. 7). Rankin was driving eastbound on West Cheyenne Avenue when LVMPD officers initiated the stop. (Id.). Rankin remained in his vehicle while officers exited their vehicle but then fled the scene, driving eastbound on West Cheyenne Avenue. (Id. ¶¶ 27-31). Concurrently, Ellen Gallucci (“Gallucci”) was riding in a vehicle headed northbound on North Jones Boulevard through the intersection of North Jones Boulevard and West Cheyenne Avenue as the traffic signal was green. (Id. ¶¶ 29-30). Rankin sped through the intersection and struck the vehicle in which Gallucci was riding. (Id. ¶¶ 29-31). Gallucci suffered severe blunt trauma that eventually caused her death. (Id. ¶ 33).

         Plaintiff, heir to Gallucci and Special Administrator of her estate, alleges that LVMPD officers knew of Rankin's criminal history and risked the safety of the public when stopping Rankin and attempting to serve a warrant in a populated area. (Id. ¶¶ 26, 38, 39). The Amended Complaint lists, in relevant part, Doe Officers I - X (“Defendant Officers”), the LVMPD, and Sheriff Lombardo (collectively “Defendants”) as defendants. (Id. ¶¶ 9, 12, 15). Plaintiff alleges seven causes of action: (1) 42 U.S.C.A. § 1983 violations against Defendant LVMPD, Sheriff Lombardo, and Defendant Officers; (2) 42 U.S.C.A. § 1983 violations against all Defendants; (3) Monell liability against LVMPD; (4) negligence and/or reckless disregard against all Defendants; (5) a survivor's action against all Defendants; (6) wrongful death against all Defendants; and (7) negligent supervision against LVMPD and Sheriff Lombardo. (Id. ¶¶ 33- 47, 48-55, 56-67, 68-78, 79-88, 89-98, 99-104).


         Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as factual allegations are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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. This standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys. Inc., 957 F.2d 655, 658 (9th Cir. 1992). 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).


         In the instant Motion, Lombardo and LVMPD move to dismiss: (1) all claims against Sheriff Lombardo; (2) Plaintiff's seventh cause of action for negligent training and supervision against LVMPD; and (3) Plaintiff's fourth cause of action for negligence and/or reckless disregard against both Sheriff Lombardo and LVMPD. (Mot. to Dismiss (“MTD”) 12:2-5, ECF No. 12). The Court addresses each request in turn.

         A. Claims Against Sheriff Lombardo

         Plaintiff alleges § 1983 claims against Sheriff Lombardo in both his official and individual capacity along with Nevada state law claims. The Court begins by addressing the § 1983 claims followed by the Nevada state law claims.

         1. 42 U.S.C. § 1983 Claims

         Plaintiff's first and second cause of action allege violations of 42 U.S.C. § 1983 against Sheriff Lombardo in both his official capacity and individual capacity. Because Plaintiff failed to respond to the Motion to Dismiss regarding Plaintiff's § 1983 claims against Sheriff Lombardo, Plaintiff has in effect conceded their dismissal. See L.R. 7-2(d) (“The failure of an opposing party to file points and authorities in response to any motion . . . constitutes a consent to the granting of the motion.”). Even still, the Court will ...

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