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Taylor v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

November 7, 2019

LARIME TAYLOR, Plaintiffs,


         Presently 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).

         Also 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).

         Also 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.

         Also before the court is plaintiff's motion for temporary restraining order. (ECF No. 78).

         Also before the court is plaintiff's motion for preliminary injunction. (ECF No. 79).

         I. Background

         The 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. at 12.

         Pursuant 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 follows:

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, would:
(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.

         Clark 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 chapter[.]

Clark Cnty., Nev. Code of Ordinances § 16.11.070.

         Because 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.[1] 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[2]; (see also ECF No. 78 at 5).

         With 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 drawing. Id.

         Just 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.

         After 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 conversion.

         II. Legal Standard

         1. Injunctive relief

         Under 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).

         This 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).

         The 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).

         Finally, 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)).

         2. Motion to dismiss

         A court 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).

         “Factual 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).

         In 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.

         Second, 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.

         Where 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.

         The 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 litigation.


         III. Discussion

         As an 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).

         Amended 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, 2011).

         However, 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.

         Accordingly, 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 complaint.[3]

         1. Injunctive relief

         A. Likelihood of success on the merits

         The 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.

         Here, 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.[4]

         i. Facial challenge

         When 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).

         Statutes 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)).

         Conduct 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)).

         Conduct 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 conduct.

         The 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 ...

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