Summary
finding further leave to amend futile where plaintiffs amended complaint and again failed to allege sufficient facts to support § 1983 claim
Summary of this case from Williams v. Reno Police DeptOpinion
2:12-cv-01988-JAD-NJK
09-21-2015
Colonel Robert Frank, et al., Plaintiffs v. City of Henderson, et al., Defendants
Order Granting in Part and Denying in Part Defendants' Motion to Dismiss
[ECF 40]
After plaintiffs Colonel Robert Frank and Tim Stebbins reported their Homeowners Association (HOA) to the Henderson Police Department for "failure to refund surplus money to individual homeowners," the City of Henderson charged Frank and Stebbins with falsely reporting a crime. When the charges were dismissed two years ]ater, Frank and Stebbins sued the City and investigating officer Sergeant Jeffrey Farley for civil-rights violations, malicious prosecution under state law, and a handful of other state tort theories. On defendants' motion, I dismissed the civil-rights claims as time-barred but gave plaintiffs leave to plead a federal malicious-prosecution claim under 42 U.S.C. § 1983 if they had the facts to support it. I denied without prejudice the motion to dismiss the state-law claims until I could determine whether plaintiffs could plead a viable federal claim to establish subject-matter jurisdiction.
ECF 1.
ECF 38.
Plaintiffs' timely filed amended complaint contains three claims against the City of Henderson and Sergeant Farley: a claim for intentional infliction of emotional distress, and claims for malicious prosecution under federal and state law. Defendants move to dismiss all claims, arguing that the emotional-distress claim is time-barred and insufficiently pled, and that the malicious-prosecution claims are implausible and barred by issue preclusion because similar arguments were raised during the criminal proceedings. Plaintiffs concede dismissal of their emotional-distress claim, so I dismiss it with prejudice. I also find that plaintiffs have alleged no facts to support any malicious-prosecution claim against the City, so all claims against the City will be dismissed. However, the malicious-prosecution claims against Sergeant Farley will proceed because plaintiffs have pled enough facts to state plausible malicious-prosecution claims, and defendants have not persuaded me that these claims are otherwise barred.
ECF 39.
ECF 40.
I find this matter suitable for disposition without oral argument. Nev. L.R. 78-2.
Background
Plaintiffs Colonel Robert Frank and Tim Stebbins belonged to the Sun City Anthem Community Association (HOA), a group of homeowners in a planned senior citizen community in Henderson, Nevada. When the HOA's President and Secretary circulated a resolution adopting a tax-planning approach for the accounting of HOA income in 2007—an approach that Frank and Stebbins characterized as unlawful—Frank and Stebbins reported the HOA's action to the Henderson Police Department. After investigating the claim, Sergeant Jeffrey Farley concluded not only that the HOA had acted lawfully but also that Frank and Stebbins had violated NRS 207.280, which makes it a misdemeanor to falsely report a crime, Farley then submitted an affidavit for a warrant.
ECF 44 at
Id. at 85. If Farley made out an affidavit seeking a warrant against Stebbins, it has not been provided. Farley's affidavit, however, repeatedly refers to Stebbins.
On February 8, 2010, the Henderson Municipal Court found probable cause to issue warrants for Frank and Stebbins's arrests. Criminal proceedings commenced against them the next day. Two days later they were subjected to a "walk through booking" at the Henderson Detention Center, which plaintiffs characterize as a "perp walk."
ECF 39 at 12.
In January 2011, the IRS settled with the HOA "over the misconduct of which Plaintiffs reported." As a result of the settlement, the HOA was required to pay the IRS more than $100,000. On March 15, 2012, the special prosecutor assigned to the criminal case against Frank and Stebbins dismissed the charges against them.
Id. at 13.
Id.
Eight months later, Frank and Stebbins sued the City of Henderson, Farley, and Chief Jutta Chambers for civil-rights violations under 42 USC § 1983 and other state-law theories including malicious prosecution, intentional infliction of emotional distress, defamation, false light, false arrest, and false imprisonment. Defendants moved to dismiss, arguing that all of plaintiffs' claims were either time-barred or insufficiently plead. In their briefing, plaintiffs suggested that their § 1983 claim included a malicious-prosecution theory, which did not accrue until the charges against them were dropped. I found that plaintiffs' intention to include a federal malicious prosecution claim was not sufficiently clear in their complaint and gave them leave to file an amended complaint to plead a new § 1983 malicious prosecution claim. I denied without prejudice the request to dismiss plaintiffs' state-law claims until after I could determine whether plaintiffs could plead a federal claim that would give me subject-matter jurisdiction over this case.
ECF 1.
ECF 10.
ECF 38 at 3.
Id. at 9.
Plaintiffs duly filed an amended complaint in which they allege three claims: (1) malicious prosecution under 42 USC § 1983, (2) malicious prosecution under Nevada law, and (3) intentional infliction of emotional distress. Defendants move to dismiss all claims or, alternatively, for summary judgmcnt. Plaintiffs concede the dismissal of their emotional-distress claim. I thus consider only defendants' arguments that plaintiffs' malicious-prosecution claims are (1) insufficiently pled, (2) barred by the doctrine of issue preclusion, and (3) precluded because plaintiffs failed to present these claims to the City within six months of ripening, as required by NRS 268.020(1).
ECF 40.
ECF 44 at2 (''Plaintiffs are amenable to withdrawing their cause-of-action for Intentional Infliction of Emotional Distress ("IIED") and claim for punitive damages. Accordingly, this Opposition will address Henderson's arguments concerning Plaintiff's [sic] claims for Malicious Prosecution under 42 USC § 1983 and Plaintiff's claim for Malicious Prosecution under Nevada law.").
Discussion
A. Motion to Dismiss Standards
Federal Rule of Civil Procedure 8 requires eveTy complaint to contain "[a] short and plain statement of the claim showing that the pleader is entitled to relief." While Rule 8 docs not require detailed factual allegations, the properly pled claim must contain enough facts to "state a claim to relief that is plausible on its face." This "demands more than an unadorned, the-defendant-unlawfully-harmcd-me accusation"; the facts alleged must raise the claim "above the speculative level." In other words, a complaint must make direct or inferential allegations about "all the material elements necessary to sustain recovery under some viable legal theory."
Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
Twombly, 550 U.S. at 570.
Iqbal, 556 U.S. at 678.
Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)) (emphasis in original).
District courts employ a two-step approach to evaluate a complaint's sufficiency on a Rule 12(b)(6) motion to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption of truth. Mere recitals of a claim's dements, supported only by conclusory statements, are insufficient. Second, the court must consider whether the well-pled factual allegations state a plausible claim for relief. A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. A complaint that docs not permit the court to infer more than the mere possibility of misconduct has "alleged—but not shown—that the pleader is entitled to relief," and it must be dismissed.
Iqbal, 556 U.S. at 678-79.
Id.
Id. at 679.
Id.
Twombly, 550 U.S. at 570.
B. Evidence Outside the Pleadings
"In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." A court should not consider other extrinsic evidence without converting the motion to dismiss into one for summary judgment and giving the non-movant an opportunity to properly respond. The Ninth Circuit has recognized two narrow exceptions to this rule in order to prevent plaintiffs from avoiding dismissal "by deliberately omitting references to documents upon which their claims are based." A court may consider documents on a motion to dismiss without converting the motion into one for summary judgment (1) that the complaint necessarily relies upon and (2) if "the contents of the document are alleged in the complaint, the document's authenticity is not in question," and the document's relevance is not disputed. A court may also "take judicial notice of adjudicative facts not subject to reasonable dispute."
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007).
See, e.g., United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).
Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (rev'd by statute on other grounds).
Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).
United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994); FED. R. EVID. 201(a)-(f).
Defendants attached a stack of documents to their motion, including the Farley affidavit and various state court filings from plaintiffs' criminal prosecution. I consider the affidavit because plaintiffs extensively rely on it in their complaint, its authenticity is not in question, and its relevance is not in dispute. I also take judicial notice of the state court documents relating to plaintiffs' criminal prosecution. I decline to consider all other exhibits to defendants' motion, however, because I choose not to convert this motion to dismiss into one for summary judgment.
ECF 40 at 82-85.
Plaintiffs devote the majority of the their 17-page complaint to statements made in the Farley affidavit.
ECF 40 at 40-46 (arrest warrants); id. at 51-58 (motion to dismiss criminal complaint); id. at 70-80 (City's opposition to motion to dismiss); id. at 90-95 (Frank's reply); id. at 125-28 (Stebbins's reply); id. at 146-49 (voluntary dismissal of charges); id. at 134-44 (docket report). I find that these documents are not subject to reasonable dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. FED. R. EVID. 201(b).
C. Plaintiffs' emotional-distress claim is dismissed and their punitive-damages prayers are stricken because they have been expressly abandoned.
In the face of defendants' argument that their intentional-infliction-of-cmotional-distress claim is time-barred because it was not brought within two years of ripening, plaintiffs offer no opposition. The same goes for defendants' challenge to plaintiffs' prayer for punitive damages. Indeed, plaintiffs state they are "amenable to withdrawing" their emotional-distress claim and their prayer for punitive damages. I deem this argument plaintiffs' acknowledgment that their third cause of action should be dismissed as time-barred and that their prayers for punitive damages are legally unsupported. I thus grant the motion to dismiss plaintiffs' emotional-distress claim and strike their punitive damages prayers. D. Plaintiffs have pled enough facts to state a plausible malicious-prosecution claim under federal and state law against Sgt. Farley and a state-law malicious-prosecution claim against the City.
ECF 44 at 2.
The court dismisses claims but strikes impertinent allegations. Plaintiffs' punitive damages allegations and prayer are not a "claim" but merely impertinent allegations and a request for a remedy. See Rivercard, LLC v. Post Oak Prod. Inc., 2013 WL 1908315, * 5 (D. Nev. May 5, 2013) (clarifying that punitive damages is a remedy and not a claim).
With the emotional distress claim dismissed, I now turn to plaintiffs' federal and state claims for malicious prosecution. Defendants argue that plaintiffs have failed to state a plausible malicious-prosecution claim against any defendant under either federal or state law. To plead a claim for malicious prosecution under Nevada law, plaintiffs must allege facts from which the court may infer: (1) that defendants lacked probable cause to initiate the prosecution, (2) malice, (3) the prior criminal proceedings were terminated in their favor, and (4) the plaintiffs suffered damages. A claim for malicious prosecution under § 1983 requires plaintiffs to allege these elements plus the additional clement that defendants prosecuted them "for the purpose of denying [them] equal protection or another specific constitutional right."
LaMantia v. Redisi, 38 P.3d 877, 888 (Nev, 2002) (internal citation omitted).
Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (internal citations omitted).
A plaintiff may bring a malicious prosecution claim not only against the prosecutor but also against police officers and investigators who were instrumental in causing his prosecution. Although the filing of a criminal complaint is generally presumed to be the prosecutor's independent decision, the Ninth Circuit has recognized that local law-enforcement officers may bear § 1983 liability when they knowingly provide misinformation to the prosecutor, conceal exculpatory evidence, "or otherwise engage[] in wrongful or bad Faith conduct that was actively instrumental in causing the initiation of legal proceedings."
Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011).
Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004).
Plaintiffs have pled enough facts to defeat defendants' Rule 12(b)(6) sufflciency-of-thc- pleadings challenge by Farley. They allege specific, detailed false statements that Farley made to procure their prosecution without probable cause. They recite that the criminal proceeding terminated in their favor "and that defendants "maliciously retaliated against [them] for petitioning their government about their government in violation of [their] First Amendment rights." They also identify several portions of the Farley affidavit they believe to be false. For instance, plaintiffs allege Farley averred that the board had in fact returned the excess funds to home owners—in contradiction of plaintiffs' reports—when he knew, or should have known, that this was not true. Plaintiffs have stated a plausible claim for relief sufficient to survive a motion to dismiss under both § 1983 and Nevada law against Farley.
ECF 39 at 5-12.
ECF 39 at 14.
Id. at 6.
Plaintiffs have also sufficiently alleged a state-law-bascd malicious-prosecution claim against the City, The City may be held vicariously liable for Farley's acts under state law under a respondeat superior theory for the employee's acts occurring within the course and scope of employment. Plaintiffs have alleged facts that permit the inference that Farley was acting within the course and scope of his employment with the City when he engaged in the challenged conduct. Thus, plaintiffs have pled sufficient facts to survive the City's 12(b)(6) sufficiency-of-the-allegations challenge to this state-law claim.
ASAP Storage, Inc. v. City of Sparks, 173 P.3d 734, 737 (2007).
See ECF 39 at 2, 4, 14.
But plaintiffs have not pled a plausible malicious-prosecution claim against the City under § 1983. There is no respondeat superior liability for § 1983 violations. To plead a § 1983 claim against a local government, a plaintiff must plead facts to satisfy the three-part test established by the United States Supreme Court in Monell v. Department of Social Services, which requires that:
Monell v. Dep't of Soc. Serv., 436 U.S. 658, 692 (1978).
(1) the official(s) must have violated the plaintiffs constitutional rights; (2) the violation must be a part of policy or custom and may not be an isolated incident; and (3) there must be a direct causal connection between the municipal policy and the alleged deprivation.It is not enough for a plaintiff to offer the conclusory allegation that his alleged constitutional violation was the result of a municipal policy or procedure. "The Supreme Court has 'required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal 'policy' or 'custom' that caused the plaintiffs injury.'" "A plaintiff cannot demonstrate the existence of a municipal policy or custom based solely on a single occurrence of unconstitutional action by a non-policymaking employee." "Only if a plaintiff shows that his injury resulted from a 'permanent and well settled' practice may liability attach for injury resulting from a local government custom."
Id. at 690-92,
Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232-33 (9th Cir. 2011) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997)).
McDade v. W., 223 F.3d 1135, 1141 (9th Cir. 2000).
Id. (quoting Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989)).
The only municipal-liability hook plaintiffs offer for their § 1983 claim against the City is a handful of conclusory allegations that the City and its police department acted with deliberate indifference, gross negligence, and reckless disregard for plaintiffs' safety, all under City policies and practices, and that the City failed to properly supervise and train its law-enforcement employees. Plaintiffs offer no facts to show the existence of any such City policy, established procedure, or longstanding practice, nor have they demonstrated the failure to train City employees, or a policy or practice of condoning and encouraging constitutional violations. At best they suggest that the failure to discipline Farley demonstrates a policy or practice of failing to adequately discipline employees for rights violations. But allegations that the City failed to train a single officer or failed once to discipline an officer are insufficient to establish municipal liability under Monell. And "[a] plaintiff cannot demonstrate the existence of a municipal policy or custom based solely on a single occurrence of unconstitutional action by a non-policymaking employee."
ECF 39 at 3-4, 13; see also Twomhly, 550 U.S. at 555 (noting that, on a motion to dismiss a court is not bound to accept as true a legal conclusions couched as a factual allegations).
Id. at 4.
Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007).
See, e.g., Peschel v. City of Missoula, 686 F. Supp. 2d 1107, 1124 (D. Mont. 2009) (applying Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996), holding modified on other grounds by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001), and citing Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003) cert. granted, judgment vacated on other grounds, 543 U.S. 194 (2004)).
McDade, 223 F.3d at 1141.
In short, plaintiffs have not alleged sufficient facts to plead a federal malicious-prosecution claim against the City but they have stated one against Farley. Plaintiffs were already given leave to try to plead a malicious-prosecution claim against the City under § 1983 and have failed to do so. From this I conclude that they lack the facts necessary to state a Monell claim against the city on this theory and that a second chance to amend would not cure this fatal defect. Accordingly, the federal malicious-prosecution claim against the City is dismissed with prejudice and without leave to amend because I conclude that further leave would be futile. Plaintiffs' state-law-based malicious-prosecution claim also survives against both defendants.
E. Plaintiffs' claims are not barred by issue preclusion.
These remaining claims are not barred by the doctrine of issue preclusion. Federal courts must give "preclusive effect to state-court judgments whenever the courts of the [s]tatc from which the judgments emerged would do so." In Nevada, a litigant is barred from re-litigating an issue if: "(1) the issue decided in the prior litigation [is] identical to the issue presented in the current action; (2) the initial ruling [was] on the merits and [has] become final; (3) the party against whom the judgment is asserted [was] a party or in privity with a party to the prior litigation; and (4) the issue was actually and necessarily litigated." Courts applying this doctrine in the malcious-prosecution context have noted that "[w]hen an individual has a full and fair opportunity to challenge a probable cause determination during the course of the prior proceedings, he may be barred from relitigating the issue in a subsequent § 1983 claim." But "collateral estoppel docs not apply when the decision to hold a defendant to answer was made on the basis of fabricated evidence presented at the preliminary hearing or as the result of other wrongful conduct by state or local officials."
Allen v. McCurry, 449 U.S. 90, 96 (1980).
Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008).
Awahdy, 368 F.3d at 1068 (citing Haupt v. Dillard, 17 F.3d 285, 289 (9th Cir. 1994)).
LaForge v. State, Univ. A Cmty. Coll. Sys. of Nevada, 997 P.2d 130, 133 (Nev. 2000) (noting that issue preclusion and collateral estoppel are "interchangeable terms" in Nevada's jurisprudence),
Id. (internal citations omitted).
Defendants argue that plaintiffs are collaterally estopped from bringing their malicious-prosecution claims because the issue of probable cause was litigated in state court during their criminal case when that court denied their motion to dismiss. Although Stebbins and Frank challenged the Farley affidavit in their criminal proceedings, there is no indication in the record that the municipal court considered and rejected their contentions such that issue preclusion should bar their malicious-prosecution claims. The cases against them were dismissed not as the result of a decision by the court, but upon the voluntary dismissal of the special prosecutors without prejudice under NRS 174.085(5)(b). As a result, I cannot conclude that the issues that underpin plaintiffs' malicious-prosecution claims were actually and necessarily litigated in plaintiffs' criminal action. The motion to dismiss these claims on issue-preclusion grounds is denied.
ECF 40 at 16.
ECF 40 at 146-148. NRS 174.085(5)(b) authorizes the prosecuting attorney to voluntarily dismiss a complaint "without prejudice to the right to file another complaint, unless the State of Nevada has previously filed a complaint against the defendant which was dismissed at the request of the prosecuting attorney."
F. Plaintiffs' remaining claims are not barred by NRS 268.020(1).
Finally, defendants argue that plaintiffs' malicious-prosecution claim against the City must be dismissed because plaintiffs did not give the City notice of this claim within six months after it ripened. NRS 268.020(1) provides that "[a]ll demands and accounts against any incorporated city in this state, must be presented to the city council of the city, in writing, within 6 months from the same time the demands or accounts became due." In effect, this claim-presentment statute acts as a six-month statute of limitations for tort claims against a municipality, when the same tort claims against non-governmental entities would enjoy a two-year statute of limitations. In Turner v. Staggs, the Nevada Supreme Court found unconstitutional an almost identical claini-prcscntmcnt statute involving tort claims against governmental entities. The Turner court reasoned that applying the six-month statute "to governmental torts den[ied] equal protection guaranteed by the United States Constitution" and served as "a trap for the unwary." The court concluded, "The statutory provisions of this state [that] provide that no person shall sue a governmental entity of this state for a demand arising out of governmental tort unless he first presents a claim within 6 months from the time such tort occurred arc void and of no effect." In light of the Turner court's invalidation of Nevada's six-month claim-presentment statutes for governmental torts, it does not appear that the Nevada Supreme Court would bar the plaintiffs's malicious-prosecution claim against the City, so neither will I.
Turner v. Staggs, 510 P.2d 879 (Nev. 1973) (construing Nev. Rev. Stat. §§ 244.245, 244.250); see also L-M Architects, Inc. v. City of Sparks, 683 P.2d 11, 12 (Nev. 1984) (reaffirming Turner but declining to extend it to contract claims). The Nevada cases defendants rely on all predate Turner or apply Idaho law. See ECF 40 at 20-21.
Turner, 510 P.2d at 882.
Id. at 883.
Conclusion
Accordingly, it is HEREBY ORDERED that defendants' Motion to Dismiss [Doc. 40] is GRANTED in part and DENIED in part:
1. Plaintiffs' federal malicious-prosecution claim (First Cause of Action) against the City is DISMISSED with prejudice; the claim may proceed against Sgt Farley;
2. Plaintiffs' state malicious-prosecution claim (Second Cause of Action) may proceed against both the City and Sgt. Farley;
3. Plaintiffs' intentional infliction of emotional distress claim (Third Cause of Action) is DISMISSED in its entirety and with prejudice; and
4. Plaintiffs' punitive damages allegations and prayer arc STRICKEN.
Dated this 21st day of September, 2015
/s/_________
Jennifer A. Dorsey
United States District Judge