United States District Court, D. Nevada
CHRISTOPHER GARDNER, individually and as heir and as Special Administrator for THE ESTATE OF ELLEN FINNIE GALLUCCI, Plaintiff,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT.
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).
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
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.
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).
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).
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 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.
42 U.S.C. § 1983 Claim Against 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.).
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).
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.
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 ...