United States District Court, D. Nevada
RHONDA SHADE, et al. Plaintiffs,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al. Defendants.
ORDER DEFENDANTS' MOTION TO DISMISS (ECF NO.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Defendants' Motion to Dismiss (ECF No. 54).
For the reasons stated below, the Motion to Dismiss is
Factual Allegations and Claims
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.
“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
LVMPD has a de facto policy of disregarding the legal status
of Nevada's medical marijuana patients.
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.
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.
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.
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).