Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Miller v. Nye County

United States District Court, D. Nevada

September 25, 2019

GARY MILLER, an individual, Plaintiff,
v.
NYE COUNTY, Nevada, a political subdivision of the State of Nevada and doing business as the Nye County Sheriff’s Office and Nye County Animal Control; and DEPUTY JOHN TOLLE, individually and in his official capacity as a Nye County Police Officer; Defendants.

          MARQUIS AURBACH COFFING Craig R. Anderson James A. Beckstrom, Attorneys for Defendants

          MCLETCHIE SHELL LLC Margaret A. McLetchie Alina M. Shell NAYLOR & BRASTER Attorneys for Plaintiff

          Margaret A. McLetchie MCLETCHIE LAW Jennifer L. Braster NAYLOR & BRASTER Counsel for Plaintiff, Gary Miller

          STIPULATION AND ORDER TO AMEND COMPLAINT

         Plaintiff, Gary Miller Plaintiff Gary Miller and Defendants Nye County and Deputy John Tolle, by and through their respective counsel of record, hereby agree and stipulate to the filing of the First Amended Complaint attached hereto as Exhibit 1. The First Amended Complaint corrects a typographical error regarding the date of the incident. Further, to the extent any discovery requests identify an incident date other than April 10, 2017, it will be presumed that the date was a typographical error and the date should be April 10, 2017.

         This stipulation is not sought for any improper purpose or other purpose of delay but rather to correct a typographical error.

         ORDER

         IT IS SO ORDERED.

         IT IS FURTHER ORDERED that Plaintiff shall file and serve Amended Complaint pursuant to LR 15-1.

          Daniel J. Allbregts United States Magistrate Judge

         EXHIBIT 1 – Proposed First Amended Complaint

         FIRST AMENDED COMPLAINT [JURY TRIAL DEMANDED]

         Plaintiff GARY MILLER, an individual, files this Complaint for damages pursuant to 42 U.S.C. § 1983 (civil action for deprivation of rights), 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1367(a) (supplemental jurisdiction), and 28 U.S.C. § 2201 (creation of remedy).

         NATURE OF THE ACTION

         On April 10, 2017, a deputy with the Nye County Sheriff’s Office shot Plaintiff Gary Miller’s six-year-old pet dog Blu in the head during a response to a false burglar alarm at Mr. Miller’s residence. After shooting Blu, the deputy and other responding officers from the Nye County Sheriff’s Office exhibited callous disregard for the trauma Mr. Miller experienced as a result of the unlawful shooting. Then, after picking up Blu from Mr. Miller’s residence, Nye County Animal Control destroyed Blu’s body without notifying or obtaining consent from Mr. Miller.

         This is an action under 42 U.S.C. § 1983 seeking to address: (1) the violations of Plaintiff Gary Miller’s rights under the Fourth and Fourteenth Amendments to the U.S. Constitution that Defendants are responsible for; and (2) unlawful policies and practices of permitting officers to shoot pet dogs even though there are no reasonable justifications to shoot the dogs and no exigent circumstances exist.

         This action also seeks to address Plaintiff’s several state tort claims against Defendants for negligent training, supervision, and retention, as well as intentional and negligent infliction of emotional distress. This court has supplemental jurisdiction over the state law claims.

         Plaintiff is entitled to damages, costs, and attorney’s fees, punitive damages, and any other relief as a victim of a civil rights violation and of tort damages.

         JURISDICTION AND VENUE

         1. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331, et seq. for civil claims arising under the Constitution and laws of the United States. Pursuant to § 1331, this Court has original subject matter jurisdiction over Plaintiff’s claims brought under 42 U.S.C. § 1983.

         2. This Court has jurisdiction over claims arising under the laws of the State of Nevada pursuant to supplemental jurisdiction provided for by 28 U.S.C. § 1367(a).

         3. The prayer for relief is predicated on 28 U.S.C. § 2201 and Fed.R.Civ.P. 38. This Court has jurisdiction to award Plaintiff damages pursuant to 42 U.S.C. § 1983 and Nev. Rev. Stat. 41.130. Authorization for the request of attorneys’ fees and costs is conferred by 42 U.S.C. § 1988(b).

         4. Each of the Defendants acted, purported to act, and/or pretended to act in the performance of their official duties, and thus each of the Defendants acted under color of law and are subject to liability as state actors pursuant to 42 U.S.C. § 1983. See McDade v. West, 223 F.3d 1135, 1140 (9th Cir. 2000).

         5. Because Defendants are not arms of the State this suit is not barred by the Eleventh Amendment to the U.S. Constitution. See Eason v. Clark County School, 303 F.3d 1137, 1147 (9th Cir. 2002); Culinary Workers Union v. Del Papa, 200 F.3d 614, 619 (9th Cir. 1999).

         6. The acts or omissions giving rise to the Plaintiff’s claims all occurred in Nye County, Nevada and all parties reside or operate in Nye County, Nevada. Thus, pursuant to 28 U.S.C. §§ 1391(b)(2) and 1391(c), venue is proper in the United States District Court for the District of Nevada.

         PARTIES

         7. During all times relevant herein, Plaintiff Gary Miller is a United States citizen who resides in Nye County, Nevada. Mr. Miller was the owner of a pet dog named Blu.

         8. Defendant Nye County is a political subdivision of the State of Nevada.

         9. At all times, Defendant Nye County possessed the power and authority to adopt policies and prescribe rules, regulations, policies, and practices affecting all facets of the training, supervision, control, employment, assignment, and removal of individual members of Nye County Sheriff’s Office (hereinafter “NCSO”).

         10. NCSO is a law enforcement agency for Nye County, Nevada with jurisdiction over Nye County, Nevada, and is tasked with enforcing state, federal, and local laws.

         11. Defendant John Tolle (“Defendant Tolle”), a deputy with NCSO, shot and killed Blu while responding to a false residential alarm. Defendant Tolle violated Mr. Miller’s Fourth and Fourteenth Amendment rights by shooting and killing Blu while responding to a false residential alarm. This constituted an unreasonable seizure of Plaintiff Miller’s property.

         12. At all times, Defendant Nye County possessed the power and authority to adopt policies and prescribe rules, regulations, policies, and practices affecting all facets of the operation of Nye County Animal Control. Nye County is also responsible for the day-to-day operations of the Nye County Animal Shelter located at 20 Goldfinch Lane, Tonopah, Nevada 89049.

         13. Nye County Animal Control provides enforcement of state and local laws pertaining to animal welfare, public health and safety, rabies control, quarantine, animal cruelty investigations, barking dogs, and animals-at-large.

         14. Nye County Animal Control destroyed the corpse of Mr. Miller’s pet dog, Blu, without informing Mr. Miller or obtaining his consent. This constituted an unreasonable seizure of Plaintiff Miller’s property and conversion.

         15. Upon information and belief, Defendant NCSO is aware of and either explicitly or implicitly condoned or created a policy and practice of allowing NCSO deputies under its command to kill the pet dogs when responding to calls for service. These killings constitute a destruction of property that is not reasonably necessary to effectuate the performance of law enforcement officers’ duties in executing search warrants, and thus routinely violate victims’ Fourth and Fourteenth Amendment rights.

         16. The naming of Defendants herein is based upon information and belief. Plaintiff reserves his right to name additional defendants and modify their allegations concerning defendants named herein. Plaintiff further reserves his right to amend these allegations to identify by name any other person or persons he learns has responsibility for the killing of his pet dog or other wrongful acted detailed in this Complaint.

         STANDING

         17. Plaintiff was directly affected and injured by Defendants’ actions, as well as their practices and policies of violating the constitutional rights of Plaintiff, as set forth more fully herein, and/or other abuses by Defendants operating under color of law as alleged herein.

         18. An actual case and controversy exists between Plaintiff and Defendants concerning their respective rights, privileges, and obligations.

         FACTUAL ALLEGATIONS

         Residence of Plaintiff Miller

          19. At all times relevant to this action, Mr. Miller and his pet dog Blu resided at 2780 Our Road, Pahrump, Nevada 89060.

         20. At all times relevant to this action, Mr. Miller had a large chain-link fence surrounding the entirety of his property, with three gates for ingress and egress, including a gate near the front door of Mr. Miller’s residence. The three access gates to Mr. Miller’s property were kept closed at all times.

         21. At all times relevant to this action, there was a concrete path leading from the rear of the property to the front door of Mr. Miller’s residence.

         22. At all times relevant to this action, Mr. Miller’s residence was equipped with a silent alarm system that was monitored by Pahrump Central Security, a private alarm company.

         23. At all times relevant to this action, Mr. Miller possessed a remote for the silent alarm system which has a “panic button” that he kept on a key fob.

         24. Upon information and belief, when the panic button on the remote for the silent alarm system is activated, Pahrump Central Security contacts NCSO dispatchers.

         Plaintiff Miller’s Pet Dog

          25. At all times relevant to this action, Mr. Miller was the owner of Blu, a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.