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Shade v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

September 30, 2017

RHONDA SHADE, et al. Plaintiffs,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al. Defendants.

          ORDER DEFENDANTS' MOTION TO DISMISS (ECF NO. 54)

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Before the Court is Defendants' Motion to Dismiss (ECF No. 54). For the reasons stated below, the Motion to Dismiss is GRANTED.

         II. BACKGROUND

         a. Factual Allegations and Claims

         The following factual allegations are taken from Plaintiffs' Second Amended Complaint. (ECF No. 52). Rhonda Shade (“Ms. Shade”) and Lowell Shade are Nevada residents who were approved by the Nevada Department of Health and Human Services (“DHHS”) for Nevada's medical marijuana program. Lowell Shade, Jr., is a minor residing in the State of Nevada. Ms. Shade was an advocate for the medical marijuana program, working with Nevada legislators to draft legislation to implement the program. Ms. Shade was in Carson City, Nevada, during the legislative session, to advocate for access to medical marijuana. She alleges that as a result of this advocacy, she was subjected to an “illegal” search warrant to retaliate against her speech. On March 19, 2011, Ms. Shade's home was searched by Defendants and members of the Las Vegas Metropolitan Police Department (“LVMPD”) Narcotics Bureau under the command of Defendant McGrath. Plaintiffs Rhonda and Lowell Shade were then arrested. Defendant McGrath claimed that he and Defendants conducted a “premises freeze.” In actuality, the Defendants entered Plaintiff's residence without consent, and used information “to dupe” a Justice of the Peace into issuing a warrant.

         McGrath “maliciously stomped after Plaintiff's pet parrot as if he were trying to kill the bird.” Defendant Grimmett omitted exculpatory information from the search warrant to mislead the magistrate judge. He omitted that Defendant Ash lied to the Plaintiffs to gain entry into the residence. Grimmett omitted from his declaration that Plaintiffs had been granted a physician's exemption to grow an excess number of medical marijuana plants. His declaration stated that Plaintiffs' cultivation of medical marijuana plants was “in excess of Nevada law.”

         The LVMPD has a de facto policy of disregarding the legal status of Nevada's medical marijuana patients.

         Defendant Ash filed an arrest report which omitted the fact that Plaintiff had a physician's exemption to grow excess plants. The arrest report falsely stated that Lowell Shade had been previously convicted of a felony. This report was approved by Defendant Dockendorf. Defendant Ash screamed at Plaintiffs during their arrest.

         Charges against Plaintiffs were dismissed on June 6, 2013, because Plaintiffs did not exceed possession of the amounts contained in their medical marijuana waiver. The arrest resulted in detention of Plaintiffs as well as approximately $300, 000.00 in property destroyed by Defendants.

         Plaintiffs' Second Amended Complaint asserts the following claims against Defendants: a Fourth Amendment claim for unlawful search and seizure, pursuant to 42 U.S.C. § 1983; a First Amendment retaliation claim, pursuant to 42 U.S.C. § 1983; a malicious prosecution claim pursuant to 42 U.S.C. § 1983; a Monell claim against the LVMPD for a policy and practice of disregarding the legal status of Nevada's medical marijuana patients, pursuant to 42 U.S.C. § 1983; a state tort claim for malicious prosecution; and a state tort claim for assault and battery.

         b. Procedural History

         Pro se Plaintiffs filed a Complaint on June 2, 2015. (ECF No. 1). This Complaint was never served on Defendants. Plaintiffs filed an Amended Complaint on October 2, 2015, which was served on Defendants. (ECF No. 5). Defendants John Collins, Jared Grimmett, LVMPD, and J. Smith, filed a Motion to Dismiss on November 16, 2015. (ECF No. 15). Plaintiffs filed a Motion to Amend/Correct the Amended Complaint on March 3, 2016. (ECF No. 30). At a hearing on August 19, 2016, the Court granted the Motion to Amend, and denied the pending Motion to Dismiss without prejudice and with leave to refile. On September 2, 2016, Plaintiffs filed a Second Amended Complaint against the LVMPD, Officer Anthony Ash, Officer J. Smith, Officer J. Collins, Detective Jerrod Grimmett, Sergeant McGrath, and Lieutenant Dockendorf. Defendants Ash, Collins, Grimmett, LVMPD, McGrath, and Smith, filed a Motion to Dismiss on September 8, 2016. (ECF No. 54). Defendant Dockendorf joined this motion. (ECF No. 64). Plaintiffs filed a Response on September 21, 2016, and Defendants filed a Reply on September 28, 2016. (ECF Nos. 57, 59).

         III.LEGAL STANDARD

         a. ...


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