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Foley v. Bourne

United States District Court, D. Nevada

April 11, 2018

MICHAEL FOLEY, Plaintiff(s),
v.
K. BOURNE, et al., Defendant(s).

          ORDER

         Presently before the court is Las Vegas Metropolitan Police Department (“LVMPD” and Joseph Lombardo's (collectively “the LVMPD defendants”) motion to dismiss. (ECF No. 5). Plaintiff Michael Foley has not filed a response, and the time for doing so has since passed.

         Also before the court is defendant Steven Grierson's motion to dismiss. (ECF No. 11). Plaintiff has not filed a response, and the time for doing so has since passed.

         Also before the court is defendant Merle Lok's motion to dismiss. (ECF No. 12). Plaintiff has not filed a response, and the time for doing so has since passed.

         Also before the court is defendants Kenneth Bourne, Kurt Graham, Steven Wolfson, Edward Ewert, and Clark County's (collectively “the Clark County defendants”) motion to dismiss. (ECF No. 14). Plaintiff has not filed a response, and the time for doing so has since passed.

         Also before the court is defendants Pamela Norton-Lindemuth and Carol Erbach's motion to dismiss. (ECF No. 16). Plaintiff has not filed a response, and the time for doing so has since passed.

         I. Facts

         This is an action for compensatory and injunctive relief against defendants, whom plaintiff alleges conspired against him to deprive him of his right to participate in the academic life of his children and to falsely arrest and imprison him for exercising that right. (ECF No. 1).

         In October of 2015, plaintiff contacted Wright Elementary School (“Wright”) principal Carol Erbach and vice-principal Pamela Norton-Lindemuth regarding plaintiff's daughter who attended Wright. Id. Plaintiff asserts that Erbach, Norton-Lindemuth, and Patricia Foley, the mother of plaintiff's daughter, had been depriving plaintiff of normal custody and rights of his children. Id. Plaintiff asserts that Erbach and Norton-Lindemuth “unlawfully and maliciously” opposed the plaintiff's right to designate himself as his daughter's emergency contact for the school. Id.

         On November 12, 2015, plaintiff asserts that he went to Wright to take his daughter to lunch. Id. Plaintiff asserts that when he identified himself to school officials, Does 1, 2, and 3, he was told to wait. Id. While he was waiting plaintiff was approached by William Gaither who informed plaintiff that he was not free to leave. Id. Deanne Turner then approached and prevented plaintiff from leaving or taking custody of his daughter. Id. Gaither gave plaintiff a letter composed by Erbach and Norton-Lindemuth informing him that he would be arrested if he ever returned to the school. Id.

         Kenneth Bourne and Kurt Graham then entered the school to arrest and remove plaintiff. Id. Plaintiff asserts that Bourne grabbed plaintiff and began to shake him, causing plaintiff personal injury. Id. Bourne, Graham and Doe 4 transported plaintiff to “Clark County's illegal debtor's prison.” Id.

         Plaintiff alleges that Bourne, Graham, Doe 4, Edward Ewert, and Steven Wolfson fabricated a fake warrant to justify plaintiff's arrest. Id. Plaintiff asserts that the warrant had a fake signature of Judge Charles Hoskin via a rubber stamp rather than a district court judge. Id.

         On November 16, 2015, after being held in Clark County Detention Center (“CCDC”) for four days, plaintiff asserts that defendants forced him to appear before “a sham tribunal that can be best characterized as a kangaroo court.” Id. Plaintiff asserts that Wolfson and Ewert set up the “sham trial” so that plaintiff would not have any representation. Id. Lok presided over the hearing. Id. Plaintiff alleges that Lok permitted plaintiff to make arguments, but said arguments were not considered and sentenced plaintiff to ten days imprisonment. Id.

         On November 13, 2017, plaintiff filed a complaint naming Bourne, Graham, Turner, Gaither, Wolfson, Ewert, Lok, Grierson, Erbach, Norton-Lindemuth, LVMPD, Lombardo, Clark County, and Patricia Foley as defendants. Id.

         II. Legal Standard

         A court 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).

         “Factual 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).

         In 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.

         Second, 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 ...


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