United States District Court, D. Nevada
TEMPORARY RESTRAINING ORDER
before the court is defendant Clark County's (“the
county”) motion to dismiss plaintiff's amended
complaint. (ECF No. 15). Plaintiff Larime Taylor
(“plaintiff”) filed a response (ECF No. 61), to
which the county replied (ECF No. 74).
before the court is defendants Las Vegas Metropolitan Police
Department (“LVMPD”), Sheriff Joseph Lombardo,
Officer Theron Young, Officer Matthew Kravetz, Officer Thomas
Albright, Officer Janette Gutierrez, Officer Clint Owensby,
Officer Robert Thorne, Officer Jacob Bittner, Officer Gerardo
Reyes, Officer Morgan McClary, Office Jake Freeman, and
Officer Christopher Longi's (collectively the
“LVMPD defendants”) motion to exceed the page
limit on its motion to dismiss. (ECF No. 16). Plaintiff filed
a response (ECF No. 35), to which the LVMPD defendants
replied (ECF No. 39).
before the court is the LVMPD defendants' motion to
dismiss plaintiff's amended complaint. (ECF No. 21).
Plaintiff filed a response (ECF No. 60), to which the LVMPD
defendants did not reply.
before the court is plaintiff's motion for temporary
restraining order. (ECF No. 78).
before the court is plaintiff's motion for preliminary
injunction. (ECF No. 79).
instant action arises from the numerous interactions
plaintiff has had with LVMPD officers while plaintiff was
“live drawing” on the Las Vegas Strip. (ECF No.
58). Plaintiff has arthrogryposis multiplex cogenita
(“AMC”), a congenital disease that affects the
development and mobility of the joints in his arms and legs,
requiring him to use a wheelchair. Id. at 7. For the
past seven years, plaintiff has been live drawing on a large
sidewalk in front of the Bellagio fountains on Las Vegas
Boulevard. Id. In order to live draw, plaintiff
backs his wheelchair against the guardrail that abuts Las
Vegas Boulevard and uses his mouth to draw on a small
portable table with a limited number of art supplies.
Id. Although he does not sell his drawings,
plaintiff accepts tips from passersby. Id. Plaintiff
live drew on the Las Vegas Strip without issue from 2012,
until April 2017. Id. at 11. Beginning in April
2017, however, LVMPD officers allegedly “began
harassing and citing street performers in the Las Vegas
Resort District, including [plaintiff].” Id.
to Clark County Code (“CCC”) § 16.11.090,
pedestrians who violate the provisions of chapter 16 of the
CCC are guilty of a misdemeanor. Clark Cnty., Nev. Code of
Ordinances § 16.11.090. Section 16.11.035 provides as
It is the police of Clark County that no obstructive use,
other than a permitted obstructive use, shall be permitted
upon any public sidewalk of the resort district of the Las
Vegas Valley if the obstructive use, if allowed to occur,
(a) Cause the LOS for the sidewalk to decline below LOS C; or
(b) Result in a significant threat to or degradation of the
safety of pedestrians.
Cnty., Nev. Code of Ordinances § 16.11.035. Further,
§ 16.11.070 states, in pertinent part, that:
No equipment, materials, parcels, containers, packages,
bundles or other property may be stored, placed or abandoned
in or on the public sidewalk. This provision shall not apply
to materials or property held or stored in a carry bag or
pack which is actually carried by a pedestrian or items such
as a musical instrument case or a backpack which is
temporarily placed next to a street performer for that street
performer's use unless said musical instrument case or
backpack actually obstructs the sidewalk in violation of this
Clark Cnty., Nev. Code of Ordinances § 16.11.070.
of his small portable table, LVMPD officers have cited
plaintiff for obstructive use of the sidewalk ten times in
the last two years. Id. at 12-18. LVMPD officers
cited plaintiff on June 11, June 29, July 26, and September
7, 2017; February 16, May 3, and July 28, 2018; and July 12,
14, and 26, 2019. Id. In addition to citing
plaintiff, LVMPD officers seized plaintiff's table on
June 11 and September 7, 2017. Id. at 12, 15. Plaintiff
further alleges that LVMPD officers interrupted his
performance on June 16 and 19 and October 21, 2019.
Id. at 19-20; (see also ECF No. 78 at 5).
one exception, each of plaintiff's citations were
dismissed. Id. at 12-18. The July 26, 2017, citation
was the sole exception. Id. at 13-14. In that case,
the Las Vegas Justice Court found plaintiff guilty of
obstructive use of a public sidewalk after a bench trial.
Id. at 13. On appeal to the district court, however,
the district court judge vacated plaintiff's conviction
and remanded the case. Id. at 14. The district court
issued an order on December 21, 2018, holding that (1) there
was insufficient evidence to prove that plaintiff was
actually obstructing the sidewalk, and (2) CCC §
16.11.070 was unconstitutional as applied to plaintiff
because the regulation, coupled with his AMC, did not provide
ample alternative channels for him to engage in his live
prior to being issued a citation on July 12, 2019, plaintiff
discussed his history of citations and his successful appeal
with Officer Bittner. Id. at 17. “Officer
Bittner explained that [LVMPD] was enforcing the [c]ode's
obstruction provisions against artists and performers as a
department-wide policy, and that he was obligated to issue a
citation until a court ordered his superiors to change the
policy.” Id. On July 14, 2019, Officer Freeman
told plaintiff that “until an injunction was issued[, ]
he was obligated to follow [LVMPD]'s policy of ticketing
street performers.” Id. at 18.
his storied history of chapter-16-related citations,
plaintiff filed the instant action against LVMPD, its
officers, Sherriff Lombardo, and the county for violating his
First, Fourth, Fifth, and Fourteenth Amendment rights;
violating the Americans with Disabilities Act
(“ADA”); violating the Nevada Constitution;
negligent training, supervision, and retention; and
Federal Rule of Civil Procedure 65, a court may issue a
temporary restraining order when the moving party provides
specific facts showing that immediate and irreparable injury,
loss, or damage will result before the adverse party's
opposition to a motion for preliminary injunction can be
heard. Fed.R.Civ.P. 65. “Injunctive relief is an
extraordinary remedy and it will not be granted absent a
showing of probable success on the merits and the possibility
of irreparable injury should it not be granted.”
Shelton v. Nat'l Collegiate Athletic Assoc., 539
F.2d 1197, 1199 (9th Cir. 1976). “The purpose of a
temporary restraining order is to preserve the status quo
before a preliminary injunction hearing may be held; its
provisional remedial nature is designed merely to prevent
irreparable loss of rights prior to judgment.”
Estes v. Gaston, No. 2:12-cv-1853-JCM-VCF, 2012 WL
5839490, at *2 (D. Nev. Nov. 16, 2012); see also Sierra
On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,
1422 (9th Cir. 1984).
court considers the following elements in determining whether
to issue a temporary restraining order and preliminary
injunction: (1) a likelihood of success on the merits; (2) a
likelihood of irreparable injury if preliminary relief is not
granted; (3) balance of hardships; and (4) advancement of the
public interest. Winter v. N.R.D.C., 555 U.S. 7, 20
(2008); Stanley v. Univ. of S. California, 13 F.3d
1313, 1319 (9th Cir. 1994); Fed.R.Civ.P. 65 (governing both
temporary restraining orders and preliminary injunctions).
party seeking the injunction must satisfy each element;
however, “the elements of the preliminary injunction
test are balanced, so that a stronger showing of one element
may offset a weaker showing of another.” Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
(9th Cir. 2011). “Serious questions going to the merits
and a balance of hardships that tips sharply towards the
plaintiff can support issuance of a preliminary injunction,
so long as the plaintiff also shows that there is a
likelihood of irreparable injury and that the injunction is
in the public interest.” Id. at 1135 (internal
quotations marks omitted).
to obtain injunctive relief, plaintiff must show it is
“under threat of suffering ‘injury in fact'
that is concrete and particularized; the threat must be
actual and imminent, not conjectural or hypothetical; it must
be fairly traceable to the challenged action of the
defendant; and it must be likely that a favorable judicial
decision will prevent or redress the injury.” Ctr.
for Food Safety v. Vilsack, 636 F.3d 1166, 1171 (9th
Cir. 2011) (quoting Summers v. Earth Island Inst.,
555 U.S. 488, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)).
Motion to dismiss
may dismiss a plaintiff's 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, 6782009) (citation omitted).
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).
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.
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
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that defendant is liable for
the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but it has not shown-that the pleader is
entitled to relief.” Id. at 679. When the
allegations in a complaint have not crossed the line from
conceivable to plausible, plaintiff's claim must be
dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held,
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
initial matter, the court dismisses the county as a defendant
from claims 1, 2, 3, and 6 pursuant to plaintiff's
stipulation. (ECF No. 61 at 1 n.2). Similarly, the court
dismisses all claims against the LVMPD officers in their
official capacities and dismisses Sheriff Lombardo as a
defendant in claim 2, consistent with the plaintiff's
stipulation. (ECF No. 60 at 2 n.4, 23 n.20).
pleadings supersede the original pleading. Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).
Consequently, filing an amended complaint will ordinarily
moot a pending motion to dismiss the original complaint.
See, e.g., MMG Ins. Co. v. Podiatry Ins. Co. of
Am., 263 F.Supp.3d 327, 331 (D. Me. 2017)
(“Typically, this amendment would render the pending
motion to dismiss moot.”); Oliver v. Alcoa,
Inc., No. C16-0741JLR, 2016 WL 4734310, at *2 (W.D.
Wash. Sept. 12, 2016); Williamson v. Sacramento Mortgage,
Inc., No. CIV. S-10-2600 KJM, 2011 WL 4591098, at *1
(E.D. Cal. Sept. 30, 2011), as amended (Oct. 11,
there is an exception to the general rule. When the amended
complaint is substantially identical to the original
complaint, the court can adjudicate the pending motion to
dismiss as it pertains to the amended complaint.
Mata-Cuellar v. Tennessee Dep't of Safety, No.
3:10-0619, 2010 WL 3122635, at *2 (M.D. Tenn. Aug. 6, 2010).
As Judge Woodcock in the United States District Court for the
District of Maine explained:
It would be futile to dismiss [defendants'] motion
without prejudice, only to have [defendants] refile another
motion to dismiss with effectively the same arguments. As the
later amendment of the [c]omplaint does not affect the
substance of the pending motion to dismiss, the [c]ourt
considers the [a]mended [c]omplaint as the operative
complaint for purposes of the motion.
MMG Ins. Co., 263 F.Supp.3d at 331.
the court will first address the pending motions for a
temporary restraining order and preliminary injunction. The
court will then address the defendants' respective
motions to dismiss the first amended complaint as they
pertain to the identical second amended
Likelihood of success on the merits
First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech.” U.S. Const.
amend. I. Plaintiffs may bring two kinds of First Amendment
claims challenging the constitutionality of a law: a
“facial” and an “as-applied”
challenge. See Santa Monica Food Not Bombs v. City of
Santa Monica, 450 F.3d 1022, 1033 (9th Cir. 2006). The
Ninth Circuit has described facial challenges as follows:
Facial constitutional challenges come in two varieties:
First, a plaintiff seeking to vindicate his own
constitutional rights may argue that an ordinance is
unconstitutionally vague or . . . impermissibly restricts a
protected activity. Second, an individual whose own speech or
expressive conduct may validly be prohibited or sanctioned is
permitted to challenge a statute on its face because it also
threatens others not before the court.
Id. (citations and quotation marks omitted). A
facial challenge “may be paired with the more common
as-applied challenge, where a plaintiff argues that the law
is unconstitutional as applied to his own speech or
expressive conduct.” Id. at 1034.
plaintiff brings both facial and as-applied challenges
against CCC §§ 16.11.035, 16.11.070, and 16.11.090.
The court will address each in turn.
addressing First Amendment challenges to a statute,
“the appropriate level of scrutiny is initially tied to
whether the statute distinguishes between prohibited and
permitted speech on the basis of content.” Frisby
v. Schultz, 487 U.S. 474, 481 (1988).
A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others.
Government regulation of expressive activity is content
neutral so long as it is “justified without reference
to the content of the regulated speech.”
Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (citations omitted).
that address conduct may nonetheless curtail
“expressive activity.” The court must determine
whether the challenged regulation targets “purely
expressive activity” or “conduct that merely
contains an expressive component.” Anderson v. City
of Hermosa Beach, 621 F.3d 1051, 1059 (9th Cir. 2010)
(citing United States v. O'Brien, 391 U.S. 367,
376 (1968); Cohen v. Cal., 403 U.S. 15, 18 (1971)).
with an expressive component includes “processes that
do not produce pure expression but rather produce
symbolic conduct that, ‘on its face, does not
necessarily convey a message.'” Id.
(quoting Cohen, 403 U.S. at 18). If the regulation
addresses conduct with an expressive component, “then
it is entitled to constitutional protection only if it is
‘sufficiently imbued with elements of communication to
fall within the scope of the First and Fourteenth
Amendments.'” Id. (quoting Spence v.
Wash., 418 U.S. 405, 409 (1974)).
possesses sufficient communicative elements “to bring
the First Amendment into play” when “an intent to
convey a particularized message was present, and in the
surrounding circumstances the likelihood was great that the
message would be understood by those who viewed it.”
Tex. v. Johnson, 491 U.S. 397, 404 (1989) (quoting
Cohen, 403 U.S. at 410-11) (alterations omitted).
For instance, the Supreme Court has found that flag burning,
Johnson, 491 U.S. at 404-07; placing a peace sign on
the flag, Spence v. Wash., 418 U.S. 405, 409-410
(1974); and wearing a black armband in protest of the Vietnam
War, Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 505-06 (1969), are all instances of expressive
Supreme Court “has held that when, as here,
‘speech' and ‘nonspeech' elements are
combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment
freedoms.'” Wayte v. United States, 470
U.S. 598, 611 (1985) (quoting O'Brien, 391 U.S.
at 376). If the conduct warrants First Amendment protection,
the court applies the O'Brien four-part test,
which is “a less stringent test ...