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Gardner v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

February 28, 2018

CHRISTOPHER GARDNER, individually and as heir and as Special Administrator for THE ESTATE OF ELLEN FINNIE GALLUCCI, Plaintiff,



         Pending before the Court is the Motion to Dismiss, (ECF No. 46), filed by Las Vegas Metropolitan Police Department (“LVMPD”). Plaintiff Christopher Gardner (“Plaintiff”) filed a Response, (ECF No. 49), and LVMPD filed a Reply, (ECF No. 50).

         Also pending before the Court is the Motion to Dismiss, (ECF No. 47), filed by Defendants Dustin Bundy (“Bundy”), Brad Friess (“Friess”), Fred Haas (“Haas”), Eric Hutchason (“Hutchason”), Joel Martin (“Martin”), Larry Morton (“Morton”), C. Schallipp (“Schallipp”), and Joshua Stark (“Stark”) (collectively “Defendant Officers”). Plaintiff filed a Response, (ECF No. 51), and Defendant Officers filed a Reply, (ECF No. 52). For the reasons set forth herein, LVMPD and Defendant Officers' (collectively “Defendants”) Motions to Dismiss are GRANTED.

         I. BACKGROUND

         This case arises from alleged constitutional violations when LVMPD officers initiated a traffic stop of Kenneth Rankin (“Rankin”), a 32-year-old male, to execute an arrest warrant. (Second Am. Compl. (“SAC”) ¶¶ 17-25, ECF No. 36). 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. ¶¶ 28-35). 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. (Id. ¶¶ 33-34). Rankin sped through the intersection and struck the vehicle in which Gallucci was riding. (Id. ¶ 36). Gallucci suffered severe blunt trauma that eventually caused her death. (Id. ¶ 37).

         Plaintiff, heir to Gallucci and Special Administrator of her estate, alleges that Defendant Officers “negligently, with reckless disregard, and indifference, initiated the stop of Mr. Rankin's vehicle, without consideration of the likely dangerous and evasive behavior of Mr. Rankin.” (Id. ¶¶ 5-7, 27). Specifically, Plaintiff alleges Defendant Officers “met for an operational meeting approximately 45 minutes prior to the multi-car crash which killed Ms. Gallucci.” (Id. ¶ 19). At this meeting, Plaintiff alleges Defendant Officers identified Rankin as a dangerous felon with an extensive criminal record who is known to be illegally in possession of firearms. (Id. ¶ 20). Plaintiff further alleges that Defendant Officers, at the direction of supervisors, went to Rankin's residence and subsequently allowed Rankin to leave, making “no attempt to execute the arrest warrant on Rankin.” (Id. ¶¶ 21-22). Defendant Officers subsequently initiated the traffic stop of Rankin and Rankin fled the scene. (Id. ¶¶ 25, 29). According to Plaintiff, “instead of allowing Rankin to flee, the Defendant Officers, with emergency lights flashing, made a U-turn and began to pursue Rankin.” (Id. ¶ 32). “In an effort to evade the pursuing law enforcement, ” Rankin sped dangerously through the intersection of North Jones Boulevard and West Cheyenne Avenue and struck Gallucci's vehicle, resulting in her death (Id. ¶¶ 35-37).

         Plaintiff filed his Second Amended Complaint (the “Complaint”) on August 10, 2017. (ECF No. 36). Plaintiff alleges the following causes of action: (1) 42 U.S.C. § 1983 violations against Defendant Officers and LVMPD; (2) wrongful death against all Defendants; and (3) negligent supervision against all Defendants. (Id. ¶¶ 53-77). On August 24, 2017, LVMPD filed the instant Motion to Dismiss. (See Mot. to Dismiss (“LVMPD's MTD”), ECF No. 46). On September 7, 2017, Defendant Officers filed its Motion to Dismiss. (See Mot. to Dismiss (“Def. Officers' MTD”), ECF No. 47).


         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 Motions to Dismiss, Defendants move to dismiss Plaintiff's claims for: (1) violations of 42 U.S.C. § 1983; (2) negligent supervision; and (3) wrongful death. (ECF No. 46); (ECF No. 47). The Court will address each of these claims in turn.

         A. 42 U.S.C. § 1983 Claim Against LVMPD

         LVMPD moves to dismiss Plaintiff's section 1983 claim for failure to state a claim. (LVMPD's MTD 7:13-17). Specifically, LVMPD argues that Plaintiff impermissibly bases his claim on a theory of respondeat superior, fails to identify an unconstitutional policy or custom, and implies that LVMPD did in fact have procedures in place to prevent Gallucci's death. (Id.).

         It is well settled that political subdivisions may not be held liable for section 1983 violations of its employees under a theory of respondeat superior. See Castro v. County of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (citing Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)). However, a plaintiff may establish municipal liability by showing that her injuries arose from a policy or custom of the defendant. Monell, 436 U.S. at 694. “[U]nder Monell, a plaintiff must prove (1) that [the plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks and citations omitted).

         Here, Plaintiff has not identified any policy or custom of LVMPD that led to the alleged constitutional violations. Plaintiff alleges that “all of the actions of the Defendant LVMPD were performed under color of state law, of a statute, ordinance, regulation, custom or usage and pursuant to their authority as law enforcement officers.” (SAC ¶ 9). Plaintiff cites Lee v. City of Los Angeles for the proposition that “a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice” is sufficient to survive a motion to dismiss. (See Resp. to LVMPD's MTD 12:7-11, ECF No. 49) (quoting Lee, 250 F.3d 668, 682-83 (9th Cir. 2001)). As Defendants point out, however, Lee was decided prior to the Supreme Court's imposition of the heightened pleading standard set forth in Bell Atl. Corp v. Twombly , 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). (LVMPD's Reply 6:20-21, ECF No. 50); see Dougherty, 654 F.3d at 900 (“Here, [plaintiff's] Monell and supervisory liability claims lack any factual allegations that would separate them from the ‘formulaic recitation of a cause of action's elements' deemed insufficient by Twombly.”); see also Young v. City of Visalia, 687 F.Supp.2d 1141, 1149 (E.D. Cal. 2009) (“In light of Iqbal, it would seem that the prior Ninth Circuit pleading standard for Monell claims (i.e. ‘bare allegations') is no longer viable.”). Since Lee, the Ninth Circuit has clarified that “allegations in a complaint . . . 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.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In addition, “the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Id.

         Plaintiff's Complaint fails to establish a plausible entitlement to relief because Plaintiff has not pointed to any LVMPD policy, custom, or practice that caused the alleged constitutional deprivation. See Dougherty, 654 F.3d at 900-01. Moreover, Plaintiff's allegations with regard to municipal liability are deficient in another fundamental respect. As discussed infra, because the Court concludes that Plaintiff cannot plausibly establish any underlying constitutional deprivation, Plaintiff cannot prevail on his claim for Monell liability. See, e.g., Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 121 (9th Cir. 2010) (“Because we hold that there was no underlying ...

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