United States District Court, D. Nevada
C. JONES UNITED STATE DISTRICT JUDGE
case arises out of the treatment of a disabled witness by
first responders at the scene of a shooting. Pending before
the Court are two motions to dismiss.
FACTS AND PROCEDURAL HISTORY
early morning hours of October 22, 2017, Plaintiff Lisa
Bonta's estranged husband Johnny was shot dead after a
night of drinking in and around Plaintiffs apartment and a
resulting confrontation with the police. (Compl. ¶¶
6-10 & n.2, ECF No. 1). The shooting itself is not the
basis of the lawsuit, but rather Plaintiffs treatment by
personnel at the scene.
about 4 a.m., Plaintiff, her service dog, and her 16-year-old
daughter Marissa were "hurried into a nearby
ambulance." (Id. ¶ 11). Marissa called her
33-year-old sister Jill to inform her of the situation, and
when Jill arrived, a Reno Police Department ("RPD")
officer told her Plaintiff and Marissa were in the ambulance.
(Id. ¶ 12). Jill explained that Plaintiff had
stage 4 breast cancer and needed her medications and oxygen,
and the officer told her there was oxygen in the ambulance.
(Id.). Another RPD officer told Jill she had to
leave the area, so she did. (Id.). Also at or about
4 a.m., Plaintiff called her son Bryce to inform him of the
situation, and when he arrived at about 4:50 a.m., he told an
RPD officer he was there to check on his mother, explaining
her medical situation, to which the officer replied that it
was an active crime scene, so he couldn't give Bryce any
information. (Id. ¶ 14). Bryce left, as
instructed by the officer, and called Jill to discuss the
about 5 a.m., Plaintiff told an officer she needed her
medications and oxygen, and he said another officer would
come speak to her. (Id. ¶ 15). At or about 6
a.m., she made another request for her medications and
oxygen, and an "official" told Plaintiff, "We
will get someone." (Id. ¶ 17). By then,
Plaintiff was in physical distress and extreme pain; her
muscles were cramping from lack of oxygen, she was cold and
barefoot without a coat, and her morphine pain pump was in
her apartment. (Id. ¶ 17). At about 6:45 a.m.,
RPD Detective McQuattie asked for Plaintiffs and
Marissa's names and social security numbers and explained
they would be taken to SPD ("Sparks Police
Department") to receive "everything they
needed." (Id. ¶ 18). He repeated this
assurance when Plaintiff asked for her medications and oxygen
again at about 7 a.m. (Id. ¶ 19). About 30-45
minutes after they arrived at SPD at about 7:15 a.m.,
McQuattie told Plaintiff nothing could be removed from the
apartment for up to 24 hours but he would see what he could
do. (Id. ¶ 20).
about 8 a.m., Washoe County Sheriffs Office
("WSCO") Detective McVickers introduced himself to
Plaintiff and Marissa and took Plaintiff away separately for
questioning. (Id. ¶ 21). Plaintiff asked him
about her medications and oxygen, and McVickers replied that
nothing could be removed from the apartment for up to 24
hours but he would see what he could do. (Id. ¶
21). McVickers and McQuattie then interviewed Plaintiff for
2-3 hours. (Id. ¶¶ 21, 24). When asked
about Plaintiffs oxygen and medications, they repeated that
nothing could be removed from the apartment for up to 24
hours but they would see what they could do. (Id.
¶ 24). Jill and Bryce were refused entry to the
apartment by police at about 8:15 a.m. because it was an
active crime scene. (Id. ¶¶ 25-27). When
Jill and Bryce arrived at SPD, they contacted WSCO Officer
Buell, as instructed at the scene, and he told them Plaintiff
was being interviewed and that they were working on getting
someone to bring the medications and oxygen, but nothing had
been done by the time Plaintiff finished her interview at
10:30 or 11 a.m. (Id. ¶¶ 27-30). At that
time, Plaintiff told Buell exactly which items were needed
and where they were in the apartment, and Buell said he would
make some calls once Marissa's questioning was done.
(Id. ¶ 30). When Marissa's interview was
done at about 11:30 a.m., McVickers took this information
from Plaintiff, as well, and said he would make a call.
(Id. ¶ 31).
went to Bryce's house to rest, and Jill stayed at SPD to
wait for her mother's items. (Id. ¶ 32). At
about 12:45 p.m., an RPD officer gave Jill a paper bag with
dirty clothes and Plaintiffs purse but no medications or
oxygen, telling her she would get the odier things when she
got the keys to the apartment, which could be up to 24 hours.
(Id.). Jill received a call from SPD at about 5 p.m.
informing her she could retrieve the keys to the apartment.
(Id. ¶ 33). Jill and her mother arrived at the
apartment at about 6 p.m. (Id.).
has sued Washoe County ("the County") and the City
of Reno ("the City") for failure to accommodate
under the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12132, and the Rehabilitation Act
("RA"), 29 U.S.C. § 794. The County and the
City have separately moved to dismiss.
Rule of Civil Procedure 8(a)(2) requires "a short and
plain statement of the claim showing that the pleader is
entitled to relief in order to "give the defendant fair
notice of what the... claim is and the grounds upon which it
rests." Conley v. Gibson, 355 U.S. 41, 47
(1957). A motion to dismiss under Rule 12(b)(6) tests the
complaint's sufficiency, see N. Star Int'l v.
Ariz. Corp. Comm 'n, 720 F.2d 578, 581 (9th Cir.
1983), and dismissal is appropriate only when the complaint
does not give the defendant fair notice of a legally
cognizable claim and the grounds on which it rests. See
Bell All. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
treats factual allegations as true and construes them in the
light most favorable to the plaintiff, NL Indus., Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), but does not
accept as true "legal conclusions... cast in the form of
factual allegations." Paulsen v. CNF Inc., 559
F.3d 1061, 1071 (9th Cir. 2009). A plaintiff must plead facts
pertaining to his case making a violation
"plausible," not just "possible."
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) ("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.").
That is, a plaintiff must not only specify or imply a
cognizable legal theory (Conley review), he must
also allege the facts of his case so that die court can
determine whether he has any basis for relief under the legal
theory he has specified or implied, assuming the facts are as
he alleges (Twombly-Iqbal review).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss." Hal Roach
Studios, Inc. v. Richard Feiner & Co., 896 F.2d
1542, 1555 n.19 (9th Cir. 1990) (citation omitted).
Similarly, "documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss" without converting the motion to dismiss into a
motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Also, under Federal Rule of
Evidence 201, a court may take judicial notice of
"matters of public record" if not "subject to
reasonable dispute." United States v. Corinthian
Colls.,655 F.3d 984, 999 (9th Cir. 2011). Otherwise, if