Uwah v. Las Vegas Metropolitan Police Department ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 MARTIN SUNDAY UWAH, Case No. 2:20-CV-1773 JCM (NJK) 8 Plaintiff(s), ORDER 9 v. 10 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., 11 Defendant(s). 12 13 Presently before the court are defendants Las Vegas Metropolitan Police Department 14 (“LVMPD”), Sheriff Joseph Lombardo, Officer Kevin Menon, and Officer Ricardo Lopez’s 15 (collectively “defendants”) motion for partial dismissal. (ECF No. 6). Plaintiff Martin 16 Sunday Uwah responded in opposition (ECF No. 10) to which defendants replied (ECF No. 17 13). 18 I. BACKGROUND 19 Las Vegas visitors Dr. Uwah and his wife were driving from dinner to their hotel in a 20 high crime area just north of the UNLV campus. (Compl., ECF No. 1 ¶ 30). Uwah’s GPS 21 instructed him to make a U-turn on a street where Officers Menon and Lopez were stationed. 22 (Id. ¶¶ 32, 36, 38). After spotting the officers’ police car, Uwah allegedly signaled and 23 turned into a parking lot to avoid making a U-turn and to reassess the directions to the hotel. 24 (Id. ¶¶ 37–41). 25 The officers followed Uwah’s car into the parking lot. (Id. ¶¶ 39–40). Officer Menon 26 approached Uwah’s car, asked him to roll down the window, and then asked him to step out 27 of the car. (Id. ¶¶ 42–47). Uwah refused to do so and asked Officer Menon why he was 28 1 being stopped. (Id. ¶¶ 42–45). Officer Menon did not answer and repeated his demand to 2 exit the car four times. (Id. ¶ 48). Uwah’s wife asked Officer Lopez through her passenger- 3 side window why the couple was being stopped as well. (Id. ¶ 49). After several more 4 officers arrived and Officer Menon threatened to physically pull Uwah out, Uwah stepped 5 out of the car and to the front of the police car. (Id. ¶¶ 53–55). 6 Officer Menon then grabbed Uwah’s arm, twisted it, slammed him into the police 7 car’s hood, handcuffed him, and painfully hyperextended his legs. (Id. ¶¶ 56–57, 62). Three 8 unidentified officers joined to physically restrain and search Uwah. (Id. ¶ 63). No illegal 9 substances or weapons were found on him or in his car. (Id. ¶ 64). Uwah was arrested for 10 failure to signal and obstruction. (Id. ¶¶ 75–76). The district attorney later “denied the 11 charges.” (Id. ¶ 81). 12 Uwah brings claims under 42 U.S.C. § 1983 for unreasonable search and seizure, 13 false arrest, excessive force, violation of equal protection, and retaliation for protected 14 speech.1 He also brings state law tort claims for negligent training, supervision, and 15 retention and for intentional infliction of emotional distress (“IIED”). Defendants now move 16 to dismiss a subset of Uwah’s claims. (ECF No. 6). 17 II. LEGAL STANDARD 18 Federal Rule of Civil Procedure 8 requires every complaint to contain a “short and 19 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8. 20 Although Rule 8 does not require detailed factual allegations, it does require more than 21 “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” 22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In other words, a complaint 23 must have plausible factual allegations that cover “all the material elements necessary to 24 sustain recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 25 26 27 1 The elements of a claim under 42 U.S.C. § 1983 are “(1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by 28 conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 1 562 (2007) (citation omitted) (emphasis in original); see also Mendiondo v. Centinela Hosp. 2 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 3 The Supreme Court in Iqbal clarified the two-step approach to evaluate a complaint’s 4 legal sufficiency on a Rule 12(b)(6) motion to dismiss. First, the court must accept as true all 5 well-pleaded factual allegations and draw all reasonable inferences in the plaintiff’s favor. 6 Iqbal, 556 U.S. at 678–79. Legal conclusions are not entitled to this assumption of truth. Id. 7 Second, the court must consider whether the well-pleaded factual allegations state a plausible 8 claim for relief. Id. at 679. A claim is facially plausible when the court can draw a 9 reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. 10 When the allegations have not crossed the line from conceivable to plausible, the complaint 11 must be dismissed. Twombly, 550 U.S. at 570; see also Starr v. Baca, 652 F.3d 1202, 1216 12 (9th Cir. 2011). 13 If the court grants a Rule 12(b)(6) motion to dismiss, it should grant leave to amend 14 unless the deficiencies cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 15 957 F.2d 655, 658 (9th Cir. 1992). Under Rule 15(a), the court should “freely” give leave to 16 amend “when justice so requires,” and absent “undue delay, bad faith or dilatory motive on 17 the part of the movant, repeated failure to cure deficiencies by amendments . . . undue 18 prejudice to the opposing party . . . futility of the amendment, etc.” Foman v. Davis, 371 19 U.S. 178, 182 (1962). The court should grant leave to amend “even if no request to amend 20 the pleading was made.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) 21 (internal quotation marks omitted). 22 III. DISCUSSION 23 A. Official Capacity Claims 24 Uwah brings various claims against Sheriff Lombardo, Officer Menon, and Officer 25 Lopez in their official capacities. But “[t]here is no longer a need to bring official-capacity 26 actions against local government officials, for under Monell . . . local government units can 27 be sued directly for damages and injunctive or declaratory relief.” Kentucky v. Graham, 473 28 U.S. 159, 167 n.14 (1985); see also Center for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. 1 Sheriff’s Dep’t, 533 F.3d 780, 799 (9th Cir. 1986). Because Uwah brings Monell claims 2 against LVMPD, his official capacity claims against the three LVMPD officials are 3 redundant and DISMISSED with prejudice. 4 B. Individual Capacity Claims against Sheriff Lombardo 5 A supervisor can be liable under § 1983 if he was personally involved in a 6 constitutional violation or there is a “a sufficient causal connection between the supervisor’s 7 wrongful conduct and the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th 8 Cir. 1989); see also Starr v. Baca, 652 F.3d 1202, 1205–08 (9th Cir. 2011). “A supervisor 9 can be liable in his individual capacity for his own culpable action or inaction in the training, 10 supervision, or control of his subordinates; for his acquiescence in the constitutional 11 deprivation . . . ; or for conduct that showed a reckless or callous indifference to the rights of 12 others.” Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (internal alteration 13 and quotation marks omitted). 14 Uwah’s allegations against Sherriff Lombardo do not lead to a reasonable inference 15 that he is personally liable for any constitutional misconduct. Uwah perfunctorily alleges 16 under each claim that LVMPD and Sheriff Lombardo did not “provide adequate training and 17 supervision” and are liable for “their employees’ actions because at all relevant times they 18 were responsible for making and enforcing constitutional policies.” (ECF No. 1 ¶¶ 93–94, 19 102–103, 113–114, 124–125, 136–137). There are no facts about Sherriff Lombardo’s 20 personal involvement in or causal connection to Uwah’s arrest. 21 And Uwah’s opposition to dismissal misses the mark. He maintains that he has 22 adequately alleged Sheriff Lombardo’s “involvement as a final policymaker with knowledge 23 and oversight of Metro’s unconstitutional policies.” (ECF No. 10 at 4; see also ECF No. 1 24 ¶¶ 10–13). Sherriff Lombardo’s involvement as a final policymaker would not necessarily 25 expose him to supervisory liability but it could subject LVMPD to municipal liability.2 See 26 27 2 To be sure, the term “supervisory liability” is shorthand for the personal liability of officers who just happen to be supervisors. “In a § 1983 suit or a Bivens action—where 28 masters do not answer for the torts of their servants—the term ‘supervisory liability’ is a misnomer.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). 1 generally Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986) (holding that a single 2 decision by a final policymaker can expose a municipality to § 1983 liability under Monell). 3 Uwah’s claims against Sherriff Lombardo in his individual capacity are DISMISSED with 4 leave to amend. 5 C. First Amendment Retaliation Claims 6 To state a First Amendment retaliation claim, the plaintiff must plausibly allege that 7 “(1) he engaged in constitutionally protected activity; (2) the defendant’s actions would chill 8 a person of ordinary firmness from continuing to engage in the protected activity; and (3) the 9 protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that 10 there was a nexus between the defendant’s actions and an intent to chill speech.” Arizona 11 Students’ Ass’n v. Arizona Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (quotation 12 omitted). At the pleading stage, the plaintiff must allege merely “plausible circumstances 13 connecting the defendant’s retaliatory intent to the suppressive conduct” and motive may be 14 shown by direct or circumstantial evidence. Id. at 870. The plaintiff need not allege or prove 15 that his speech was “actually suppressed or inhibited.” Id. at 867. 16 “The First Amendment protects a significant amount of verbal criticism and challenge 17 directed at police officers … The freedom of individuals to oppose or challenge police action 18 verbally without thereby risking arrest is one important characteristic by which we 19 distinguish ourselves from a police state.” Duran v. City of Douglas, Ariz., 904 F.2d 1372, 20 1378 (9th Cir. 1990) (internal citations omitted). 21 Uwah alleges that he engaged in protected speech when “politely question[ed] Officer 22 Menon’s authority to detain him and his rationale for said detention.” (ECF No. 10 at 6). It 23 cannot be disputed that Uwah’s speech occurred after he was stopped by LVMPD and 24 allegedly after Officer Menon demanded that Uwah exit car and he refused. (ECF No. 1 ¶¶ 25 45, 60, 128)). Thus, Uwah’s allegations that “[b]ut for [Officer Menon’s] retaliatory animus, 26 [he] would not have been subjected to arrest for allegedly failing to use his turn signal, nor 27 would [he] have been subjected to arrest for alleged obstruction” are not plausible. (ECF No. 28 1 1 ¶¶ 130–131). Uwah’s First Amendment retaliation claims are DISMISSED with leave to 2 amend. 3 D. Equal Protection Claims 4 The Equal Protection Clause is “essentially a direction that all persons similarly 5 situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 6 432, 439 (1985). To state an equal protection claim, a plaintiff must plausibly allege that a 7 state actor acted with discriminatory intent or purpose because of plaintiff’s membership in a 8 protected class or “allege facts that are at least susceptible of an inference of discriminatory 9 intent.” Byrd v. Maricopa Cty. Sherif’s Dep’t, 565 F.3d 1205, 1212 (9th Cir. 2009) 10 (quotation omitted), on reh’g en banc, 629 F.3d 1135 (9th Cir. 2011). 11 Uwah alleges that he was driving in a high crime area and used his turn signal at all 12 times. (ECF No. 1 ¶¶ 32–33, 41, 75). According to him, these allegations allow a reasonable 13 inference that his stop and arrest for a purported failure to signal and obstruction was not 14 based on probable cause but based on “racial profiling or racial animus.” (ECF No. 10 at 5). 15 The court disagrees. It cannot infer from Uwah’s allegations that Officers Menon and Lopez 16 stopped him because he is black. As defendants note, “[t]here are no allegations that the 17 officers knew of [Uwah’s] race” when they pulled him over. (ECF No. 13 at 7). Uwah’s 18 equal protection claims are DISMISSED with leave to amend. 19 E. Monell Claims 20 A local government entity cannot be vicariously liable under § 1983 for “an injury 21 inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 22 694 (1978). Rather, a plaintiff must plausibly allege the “execution of a government’s policy 23 or custom” that reflects a deliberate indifference to his constitutional rights was the “moving 24 force” behind his injury. Id.; see also City of Canton v. Harris, 489 U.S. 378, 392 (1989). 25 And if the claim is based on an informal practice, it must be of “sufficient duration, 26 frequency and consistency that the conduct has become a traditional method of carrying out 27 policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 28 1 Thus, municipal liability under Monell and its progeny can arise in three ways: (1) 2 commission—when a local official executes an express custom, policy, or practice that 3 causes the injury; (2) omission—when a municipality’s oversight amounts to a deliberate 4 indifference to a constitutional right; or (3) ratification—when a final policymaker authorizes 5 or approves of a subordinate’s unconstitutional conduct. Clouthier v. Cnty. of Contra Costa, 6 591 F.3d 1232, 1249–50 (9th Cir. 2010), overruled on other grounds by Castro v. Cty. of Los 7 Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016). 8 Uwah’s recounting of various LVMPD lawsuits as part of a “long history of 9 constitutional violations” (ECF No. 10 at 8) has little to do with his precise alleged 10 constitutional injury—a vehicle stop made without probable cause that ended in an arrest 11 made with excessive force. (See ECF No. 1 ¶¶ 22–28). For example, Uwah recounts 12 litigation over LVMPD’s detention of street performers on the Strip. (Id. ¶ 28). Uwah’s 13 contention that such “past incidents raise the inference that Metro has unlawful practices or 14 policies of making seizures and arrests without probable cause” is far from what he must do 15 at this pleading stage: identify a specific LVMPD policy that caused his unconstitutional stop 16 and arrest. (ECF No. 10 at 2). While an officer’s alleged statements to Uwah describing 17 how LVMPD’s gang unit “do some stuff different” in high crime areas are more helpful, 18 these allegations alone fall short of a well-pleaded Monell claim. (Id. ¶¶ 69–70). Uwah’s 19 Monell claims are DISMISSED with leave to amend. 20 F. State Law Tort Claims 21 A person with a tort claim against a Nevada political subdivision must file his claim 22 within two years of accrual with the governing body of that political subdivision. Nev. Rev. 23 Stat. § 41.036(2). The purpose of this claims-notice statute is to prevent surprise. State by 24 Welfare Div. of Dept. of Health, Welfare and Rehabilitation v. Capital Convalescent Ctr., 25 547 P.2d 677, 152 (Nev. 1976). 26 Uwah concedes that his negligent training, retention, and supervision claim against 27 LVMPD should be dismissed under Nevada’s claims-notice statute. (ECF No. 10 at 2). His 28 encounter with LVMPD officers occurred on September 24, 2018 yet LVMPD first received 1 notice of his state law tort claims when it was served with the instant complaint on December 2 9, 2020. (ECF No. 6 at 15). 3 Uwah incorrectly maintains that his IIED claim against Officer Menon in his 4 individual capacity should proceed. (ECF No. 10 at 9). Because he does not allege that 5 Officer Menon acted outside the scope of his employment—nor can he plausibly do so—his 6 failure to name LVMPD as a defendant to the IIED claim is grounds for dismissal under 7 NRS 41.0337.3 But on top of omitting an indispensable defendant, to bring an IIED claim 8 against LVMPD, Uwah had to notify it of the claim within two years of accrual under NRS 9 41.036(2). As discussed above, Uwah notified LVMPD of his state law tort claims via the 10 instant complaint after the two-year period. Thus, both his IIED and negligent training, 11 supervision, and retention state law tort claims are DISMISSED with prejudice. 12 IV. CONCLUSION 13 Accordingly, 14 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants’ motion 15 for partial dismissal (ECF No. 6) be, and the same hereby is, GRANTED. Uwah’s claims 16 against LVMPD officials in their official capacities and his two state law tort claims are 17 DISMISSED with prejudice. The remaining claims discussed herein are DISMISSED with 18 leave to amend. 19 . . . 20 . . . 21 . . . 22 . . . 23 . . . 24 3 NRS 41.0337 states that “[n]o tort action arising out of an act or omission within the 25 scope of a person’s public duties or employment may be brought against any present or former . . . Officer or employee of the State or of any political subdivision . . . unless the 26 State or appropriate political subdivision is named a party defendant under NRS 41.031.” Nev. Rev. Stat. § 41.0337; see also Craig v. Donnelly, 439 P.3d 413, 416 (Nev. App. 2019) 27 (“Any state tort claims must name not only the state employees, but must also include the State, on relation of the particular department, as a party to those particular claims in order to 28 comply with NRS 41.031 and NRS 41.0337 and perfect a waiver of Nevada’s sovereign immunity.”). 1 IT IS FURTHER ORDERED that Uwah may filed an amended complaint within 21 2| days of this order. Failure to do so will result in dismissal of the claims discussed herein 3| with prejudice. 4 DATED June 18, 2021. 5 Mts ©. Ataltian 6 UNITED, STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 es C. Mahan District Judge -9-