United States District Court, D. Nevada
ZYHERE L. FICHMAN, Plaintiff,
JOSEPH MERCER, individually and in his official capacity as a Sparks Police Department Officer; CITY OF SPARKS, a municipal corporation, JOHN DOE Defendants 1-10; RED AND WHITE CORPORATIONS; BLACK AND BLUE MUNICPAL ENTITIES 2 - 10, Defendants.
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
Zyhere Fichman alleges that Defendant Joseph Mercer
unlawfully arrested him in connection with an armed robbery.
Before the Court is Defendants Mercer and City of Sparks'
motion to dismiss the Complaint (“Motion”) (ECF
No. 12). The Court has reviewed Plaintiff's response (ECF
No. 16) and Defendants' reply (ECF No. 17). For the
following reasons, the Court grants in part and denies in
part Defendants' Motion.
following allegations are taken from the Complaint (ECF No.
1) unless otherwise indicated.
Kendrick, a 19-year-old woman, called 911 on June 2, 2017, to
report that a group of men robbed her at gunpoint at her
apartment in Sparks. (See Id. at 5, 7.) Kendrick
called from the apartment of a neighbor-Yvonne
Hernandez-because the men allegedly snapped her phone in
half. (See id.)
Kimberly Hodge and Chris Rowe responded and interviewed
Kendrick and some of her neighbors. (Id. at 5.)
Kendrick said she believed the robber was her ex-boyfriend, a
man named Sirmario De La Paz, with whom she had broken up
earlier that day. (Id.) Kendrick also said that she
was robbed because “they” had asked her for money
to buy drugs and she had refused. (Id.) One of
Kendrick's neighbors-Hernandez-told Hodge she did not
hear anything until Kendrick came to her door. (Id.
at 6.) Two other neighbors-Kennedy Garrett and Roderick
Miller-said that Kendrick and her boyfriend fight all the
time. (Id.) Garrett said she heard fighting, a door
slamming about 20-30 minutes later, and then Kendrick
knocking loudly on neighbors' doors asking for help.
(Id.) Garrett and Miller both saw one man with dark
hair and a white shirt jogging away from the building.
Mercer arrived at the scene after the first two officers, but
he took over the investigation because he believed the
suspects were affiliated with a gang. (Id. at 5.)
Mercer brought up Plaintiffs name and said he thought
Plaintiff was involved (Id. at 6.) Mercer claimed in
his report that Kendrick told him she was “220%
positive” that Plaintiff was the armed robber.
(Id.) Mercer “put Plaintiff's name in Ms.
Kendrick's head when it otherwise would not have been
there.” (Id. at 7.) Kendrick told Mercer that
she thought Plaintiff was the gunman because the gunman and
the other men were dressed in all black; the gunman had an
“‘afro'-style” haircut (like
Plaintiff); and the gunman spoke in a low, smooth voice.
(Id.) Kendrick told Mercer that she thought she saw
De La Paz when she looked out the peephole of her apartment
and that he was wearing a white shirt with Japanese letters
on the side of the arm. (Id.)
believed that De La Paz and the other robbers were at a
location on Grove Street in Reno, about 5 or 10 miles away
from Plaintiff's residence. (See Id. at 8.)
Kendrick went there with Hodge but was unable to identify any
perpetrators. (Id.) Hodge called Mercer, who advised
that he had located Plaintiff and “the others” at
Plaintiff's residence. (Id.)
drove Kendrick to Plaintiffs residence. (Id.)
Plaintiff had been stopped in a vehicle with three other
young men who were members of YLOC. (See Id. at 9.)
Kendrick testified at Plaintiffs preliminary hearing that
these three were not involved. (Id.) Kendrick
refused to make a written or oral report. (Id.)
state court took evidence at Plaintiffs preliminary hearing.
(See Id. at 5.) Kendrick testified to the following
at the preliminary hearing. Mercer was familiar with YLOC.
(Id. at 6.) Mercer brought up Plaintiffs name and
said he thought Plaintiff was involved. (Id.) When
the police interviewed Kendrick, she said she was “220%
certain that Fichman was there”-not “220%
positive” that Plaintiff was the armed robber.
(Id.) She did not see Plaintiffs vehicle at her
apartment at or about the time of the robbery. (Id.
at 8.) She identified Plaintiff and an individual named
Anthony Henry when she went to Plaintiffs residence.
(Id.) Plaintiff was wearing grey sweatpants, no
shirt, and no boots. (Id. at 9.)
Lee, one of the men in Plaintiffs car, testified that
Plaintiff was with him and the others the entire day,
including and especially during the timeframe of the alleged
alleges that a reasonable police officer would have been
suspicious of Kendrick's identification of Plaintiff as
the robber based on the following:
• Kendrick initially told Officers Hodge and Rowe that
she believed De La Paz-not Plaintiff-was the robber.
(Id. at 5-6.)
• Garrett and Miller's description of the man they
saw jogging away from the building matched De La Paz-not
Plaintiff. (Id. at 6.)
• The gunman could not have perpetrated the armed
robbery using a “low, smooth voice” because he
used harsh language such as: “Shut the fuck up.
Don't say anything. Turn around.” (See Id.
• Kendrick told Mercer that the gunman and the other man
were wearing black pants, black boots, and big, black
jackets, but she also told him that she saw a man with a
white shirt printed with Japanese letters on the side of the
arm when she looked out her apartment peephole.
• The neighbors did not hear anything even though
Kendrick claimed that the robbers carried out her 55”
television, 32” television, Playstation, games, movies,
Roku, and jewelry. (Id.)
• Nothing in Mercer's report corroborated the claim
that Kendrick even owned the items she claimed were stolen.
(Id. at 8.)
• Kendrick's cell phone could have been broken by
just one person (e.g., De La Paz). (Id.)
• Kendrick did not know where Plaintiff resided and had
never been to his home. (Id.)
• Plaintiff was wearing grey sweatpants, no shirt, and
no boots when he was identified and arrested-not black pants,
black boots, and a big, black jacket. (Id. at 9.)
• Kendrick refused to make a report, suggesting that she
was afraid of perjuring herself. (Id.)
all reasonable inferences in Plaintiffs favor at this stage
of the litigation, Plaintiff also alleges that Mercer