United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE
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.
Factual Background and Procedural History
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).
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
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.
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.
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.
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.
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
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 ...