United States District Court, D. Nevada
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.
M. NAVARRO UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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.”
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).
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
Claims Against Sheriff Lombardo
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.
42 U.S.C. § 1983 Claims
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 ...