United States District Court, D. Nevada
before the court is defendant Las Vegas Metropolitan Police
Department's (“LVMPD”) motion to dismiss.
(ECF No. 4). Plaintiff Ronnie Mitchell filed a response (ECF
No. 8), to which defendant replied (ECF No. 10).
before the court is defendant Officer R. Shoemaker's
motion to dismiss. (ECF No. 5). Plaintiff filed a response
(ECF No. 9), to which defendant replied (ECF No. 11).
August 13, 2015, plaintiff was arrested by Shoemaker and the
LVMPD in Clark County, Nevada. (ECF No. 1). After plaintiff
was taken into custody, Shoemaker stepped on plaintiff's
left hand, breaking it in three places. Id.
took plaintiff to University Medical Center
(“UMC”). Id. Plaintiff was given medical
treatment for his hand and was instructed to promptly follow
up with an orthopedic surgeon. Id. Plaintiff
remained in custody with LVMPD, which refused to provide for
further medical treatment. Id.
alleges that, as a result of LVMPD's delay in treatment
for his hand, his injuries were worsened and required surgery
to repair. Id. Plaintiff's injuries are
August 14, 2017, plaintiff filed a complaint naming the LVMPD
and Shoemaker as defendants. Id.
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide “[a]
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but not shown-that the pleader is entitled to
relief.” Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from conceivable to plausible,
plaintiff's claim must be dismissed. Twombly,
550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court stated, in relevant
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim 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. Second, 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
and Shoemaker filed separate motions to dismiss
plaintiff's claims against them. (ECF Nos. 4, 5).
Plaintiff's claims against LVMPD
argues that both plaintiff's first cause of action for
violations under § 1983, and plaintiff's second
cause of action for negligence under state law should be
dismissed. (ECF No. 4).
Plaintiff's § 1983 claim against LVMPD
argues that plaintiff's first cause of action, brought
under § 1983, should be dismissed because the claim only
alleges that Shoemaker “willfully, negligently and
recklessly” disregarded plaintiff's safety by
refusing to allow plaintiff to receive additional medical
treatment for his hand resulting in additional injury. (ECF
No. 4). LVMPD asserts this claim fails as to LVMPD because
(1) a municipality cannot be held liable under § 1983 on
a resp ...