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Thornal v. Pitts

United States District Court, D. Nevada

December 17, 2019

ROBERT THORNAL, Plaintiff,
v.
JIM PITTS, in his individual and official capacities; RON SUPP, in his individual and official capacities; ELKO COUNTY SHERIFF'S OFFICE, a governmental entity, and ELKO COUNTY, a governmental entity, Defendants.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

         Defendant Elko County Sheriff's Office has filed a motion to dismiss the complaint of plaintiff Robert Thornal. (ECF No. 11). No other defendant joined in the Sheriff's Office's motion to dismiss. Thornal filed a response (ECF No. 16), and the Sheriff's Office timely replied (ECF No. 17). For the reasons stated below, the Court will grant the motion to dismiss.

         I. Factual Background and Procedural History

         This is a wrongful termination action. According to the factual allegations within his complaint, which are presumed to be true for the purposes of this motion, Thornal was fired from his position as a sheriff's deputy after testifying for the plaintiff in a civil rights action brought against Elko County. (ECF No. 1 at 5). He also alleged that his firing stemmed from the fact that he supported defendant Jim Pitts's opponent in the 2018 Elko County Sheriff election and was fired shortly before Pitts's term was set to end. (Id. at 7-8). Thornal also claims that his race (Native American) played a factor in his termination. (Id. at 13). Following the filing of his complaint on June 26, 2019, the Sheriff's Office brought the instant motion to dismiss on August 9. (ECF No. 11).

         II. Legal Standard

         Although the Sherrif's Office does not state the applicable legal standard in its motion, the Court will construe it as seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state a claim, a complaint must satisfy Federal Rule of Civil Procedure 8(a)(2)'s notice pleading standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That is, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations; a pleading, however, that offers “ ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action' ” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         Furthermore, Rule 8(a)(2) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Iqbal, 556 U.S. at 667 (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the misconduct alleged. Id. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id.

         In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as true. Iqbal, 556 U.S. at 667. Even so, “bare assertions. . .amount[ing] to nothing more than a formulaic recitation of the elements of a. . .claim. . .are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 681) (brackets in original) (internal quotation marks omitted). The court discounts these allegations because “they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation.” Id. (citing Iqbal, 556 U.S. at 681.) “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Id.

         III. Discussion

         The Sheriff's Office's motion to dismiss straightforwardly asserts one ground for dismissal - that under Nevada law, it cannot be sued because it is not a suable “political subdivision” under Nevada law. (ECF No. 11 at 2). It points to Wayment v. Holmes, a 1996 case from the Nevada Supreme Court, arguing that it expressly held that departments of counties (such as sheriff's offices and district attorney's offices) cannot be sued. In response, Thornal argues that subsequent caselaw has abrogated Wayment and that the Sheriff's Office has waived immunity from suit by frequently appearing as the plaintiff in civil asset forfeiture actions in Nevada state court. (ECF No. 16 at 4, 9). The Court will begin its analysis by surveying the relevant Nevada caselaw and statutes.

         In Wayment v. Holmes, a former deputy district attorney sued Washoe County, the Washoe County District Attorney's Office, and two individuals working for the office for tortious discharge after he was fired for pointing out errors his supervisor had made in drafting an indictment. 912 P.2d 816, 817-18 (Nev. 1996). The Nevada Supreme Court held that the District Attorney's Office was not a suable entity because it was a department of Washoe County, not an independent political subdivision. Id. at 819. It noted that “in the absence of statutory authorization, a department of the municipal government may not, in the departmental name, sue or be sued.” Id. (quoting 64 C.J.S. Municipal Corporations §2195 (1950)). Wayment has not been abrogated by any subsequent cases from the Nevada Supreme Court and remains the law of the state. Therefore, to maintain his action against the Sheriff's Office, Thornal must point to some form of statutory authorization that allows the Sheriff's Office to sue or be sued directly.

         Thornal first argues that although sheriff's offices are not defined as “political subdivisions” in Nev. Rev. Stat. §41.0305, neither are counties, and it is axiomatic that counties may be sued. (ECF No. 16 at 7). As such, according to the argument, that statute does not prohibit sheriff's offices from being sued. Nev. Rev. Stat. §41.0305 is the statute wherein the State of Nevada waived absolute immunity from suit for both itself and its “political subdivisions.” Although not defined in that section, “political subdivisions” are defined in Nev. Rev. Stat. §41.0305 as follows:

[T]he term “political subdivision” includes an organization that was officially designated as a community action agency pursuant to 42 U.S.C. § 2790 before that section was repealed and is included in the definition of an “eligible entity” pursuant to 42 U.S.C. §9902, the Nevada Rural Housing Authority, an airport authority created by special act of the Legislature, a regional transportation commission and a fire protection district, an irrigation district, a school district, the governing body of a charter school, any other special district that performs a governmental function, even though it does not exercise general governmental powers, and the governing body of a university school for profoundly gifted pupils.

42 U.S.C. §9902 had defined a “community action agency” as one with the power to enter into contracts, receive and administer funds, and delegate powers to other agencies. Schneider v. Elko County ...


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