United States District Court, D. Nevada
M. Navarro, District Judge.
before the Court is the Motion to Dismiss, (ECF No. 12),
filed by Defendants Las Vegas Metropolitan Police Department
(“LVMPD”), Sergeant Travis Crumrine
(“Sergeant Crumrine”), Officer Michael Tran
(“Officer Tran”), and Officer Michael Flores
(“Officer Flores”) (collectively, “LVMPD
Defendants”), to which Defendant Kenneth Lopera
(“Officer Lopera”) filed a Joinder, (ECF No. 13).
Plaintiff Trinita Farmer (“Plaintiff”) filed a
Response, (ECF No. 27), and LVMPD Defendants filed a Reply,
(ECF No. 36).
pending before the Court is Plaintiff's Motion for
Summary Judgment, (ECF No. 69). Officer Lopera filed a
Response, (ECF No. 70), to which LVMPD Defendants filed a
Joinder, (ECF No. 71). Plaintiff then filed a Reply, (ECF
Nos. 74, 76).
reasons discussed below, the Court DENIES
the Motion to Dismiss, (ECF No. 12), and
DENIES Plaintiff's Motion for Summary
Judgment, (ECF No. 69).
is the mother of Tashii Brown (“Tashii”). (First
Am. Compl. (“FAC”) ¶ 3, ECF No. 4). Tashii
died on May 14, 2017, from the actions of Officer Lopera of
the Las Vegas Metropolitan Police Department. (Id.
¶ 5). According to the First Amended Complaint, his
death was ruled a homicide. (Id.).
First Amended Complaint alleges that on May 14, 2017, Tashii
approached Officers Lopera and Lif in the Venetian Resort
Hotel and Casino, while they were on duty. (Id.
¶ 13). Tashii was sweating profusely, and he asked if
they knew where he could find a drinking fountain.
(Id. ¶ 14). Officer Lopera then asked why he
was sweating, to which Tashii responded that “he had
just run from across the street because he believed people
were following him.” (Id. ¶ 15). There
was no indication that Tashii had caused any harm to persons
or property, nor was he an immediate threat. (Id.).
However, after Officer Lopera's questions, Tashii became
frightened and ran. (Id. ¶ 16).
ran to an outside roadway on the Venetian's property; and
Officer Lopera caught up with him near a vehicle, which,
according to Officer Lopera, Tashii was attempting to
steal.Officer Lopera then deployed his taser,
causing Tashii to become incapacitated. (Id. ¶
18). Lopera also ordered Tashii to get on his stomach-though
Tashii did not have time to comply before being struck again
and again by Lopera's taser, for a total of seven times.
(Id. ¶¶ 18-19). After using his taser,
Officer Lopera “proceeded to deliver several blows to
Tashii's face and head while he was on the ground.”
(Id. ¶ 19) (stating that Lopera struck
Tashii's face and head approximately twelve times). Next,
Lopera “choked Tashii for over a minute” by using
a chokehold maneuver. (Id.).
Crumrine was Officer Lopera's commanding officer, and he
arrived at the scene of the incident within seconds before
Lopera administered the chokehold on Tashii. (Id.
¶ 22). Officers Tran and Flores also arrived at the
scene as Lopera began the chokehold. (Id.
¶¶ 22- 23). Tran initially told Lopera to let go of
Tashii-but Lopera “continued to administer the choke
hold for forty-four more seconds” as Sergeant Crumrine,
Officer Flores, and Officer Tran allegedly screamed and
cursed at Tashii while placing handcuffs on him and holding
him down. (Id. ¶ 20, 22).
according to Plaintiffs allegations, Sergeant Crumrine did
not intervene at all; nor did Flores or Tran. (Id.
¶ 23). From Lopera's chokehold and beating, Tashii
became unconscious and died. (Id. ¶ 23-24).
13, 2018, Plaintiff filed her Complaint, (ECF No. 1). Shortly
afterward, Plaintiff amended her Complaint, asserting three
causes of action based on violations of her due process right
to familial association with Tashii: (1) violation of civil
and constitutional rights of familial association under 42
U.S.C. § 1983, against Officer Lopera, Officer Tran,
Officer Flores, and Sergeant Crumrine; (2) violation of civil
and constitutional rights of familial association under 42
U.S.C. § 1983 against LVMPD under a theory of municipal
liability; and (3) violation of civil and constitutional
rights of familial association under 42 U.S.C. § 1983,
against Sergeant Crumrine for supervisor liability. (FAC
September 17, 2018, LVMPD Defendants filed their instant
Motion to Dismiss, (ECF No. 12), seeking dismissal of
Plaintiff s First Amended Complaint with prejudice. Plaintiff
thereafter filed her Motion for Summary Judgment, (ECF No.
Motion to Dismiss
Rule of Civil Procedure 12(b)(6) mandates that a court
dismiss a cause of action that fails to state a claim upon
which relief can be granted. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, 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 Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
may also dismiss a complaint pursuant to Federal Rule of
Civil Procedure 41(b) for failure to comply with Federal Rule
of Civil Procedure 8(a). Hearns v. San Bernardino Police
Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2)
requires that a plaintiff's complaint contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Furthermore, the Supreme Court has already rejected any sort
of “heightened” pleading requirement for §
1983 municipal liability claims because such a heightened
pleading standard cannot be “square[d] . . . with the
liberal system of ‘notice pleading' set up by the
Federal Rules.” Leatherman v. Tarrant Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164 (1993). “Prolix, confusing complaints”
should be dismissed because “they impose unfair burdens
on litigants and judges.” McHenry v. Renne, 84
F.3d 1172, 1179 (9th Cir. 1996).
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) (citations 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). Under Federal Rule of Evidence
201, a court may take judicial notice of “matters of
public record.” Mack v. S. Bay Beer Distrib.,
798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the
district court considers materials outside of the pleadings,
the motion to dismiss becomes a motion for summary judgment.
See Arpin v. Santa Clara Valley Transp. Agency, 261
F.3d 912, 925 (9th Cir. 2001).
court grants a motion to dismiss, it must then decide whether
to grant leave to amend. The court should “freely
give” leave to amend when there is no “undue
delay, bad faith[, ] dilatory motive on the part of the
movant . . . undue prejudice to the opposing party by virtue
of . . . the amendment, [or] futility of the amendment . . .
.” Fed.R.Civ.P. 15(a); Foman v. Davis, 371
U.S. 178, 182 (1962). Generally, leave to amend is only
denied when it is clear that the ...