Greg Smith v. Las Vegas Metropolitan Police Department, et al.

Opinion

3 GREG SMITH, Case No.: 2:25-cv-00525-APG-DJA

4 Plaintiff Order Granting LVMPD’s and CNLV’s Motions To Dismiss 5 v.

6 LAS VEGAS METROPOLITAN POLICE [ECF Nos. 25, 26] DEPARTMENT, et al., 7 Defendants 8

9 Greg Smith sues Las Vegas Metropolitan Police Department (LVMPD), the City of 10 North Las Vegas (CNLV), and eleven of its employees for claims arising from his arrest, 11 detention, and hospital stay in 2023. He brings Fourth and Fourteenth Amendment claims under 12 42 U.S.C. § 1983, and negligence claims against the individual officers. He also brings Monell1 13 claims against LVMPD and CNLV. Smith amended his complaint twice, and LVMPD now 14 moves to dismiss the Monell claim against it. CNLV joins LVMPD’s motion and also moves to 15 dismiss the Monell claim against it. 16 Smith alleges that he was taken into custody and transported to a correctional center run 17 by CNLV. ECF No. 20 at 3. After he was detained, Smith noticed a wound on his ankle. Id. 18 Beyond an initial screening, he did not receive medical attention from CNLV officers for his 19 ankle wound. Id. at 4. Smith alleges that the holding cell had “water, sewage, filth, and stagnant 20 water over the floor” that he had to walk through to get water, use the sink, and go to the 21 bathroom. Id. On the third day of detention, Smith was moved to Clark County Detention 22 Center, where he was screened by medical staff and moved to University Medical Center to 23

1 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) 1 receive treatment for his ankle wound. Id. At the hospital, he was diagnosed with sepsis and was 2 admitted. Id. Over the course of a seven-day hospital stay, Smith alleges that nine LVMPD 3 officers intentionally handcuffed him too tightly, despite LVMPD policy to the contrary, and that 4 they refused to loosen the handcuffs when asked. Id. at 4-5, 11. Smith alleges that the tight

5 handcuffing resulted in nerve damage to his right hand and wrist. Id. at 5. 6 I grant LVMPD’s and CNLV’s motions to dismiss because Smith fails to plead specific 7 facts showing the alleged constitutional deprivations were part of a longstanding pattern, he does 8 not plausibly plead facts to show that the defendants were deliberately indifferent to his rights in 9 training their officers, and he fails to identify a final policymaker or any of their specific actions 10 that ratified the officers’ behavior. 12 In considering a motion to dismiss, I take all well-pleaded “allegations of material fact as 13 true and construe them in a light most favorable to the non-moving party.” Kwan v. SanMedica 14 Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017) (quotation omitted). However, I do not “assume the

15 truth of legal conclusions merely because they are cast in the form of factual allegations.” Navajo 16 Nation v. Dep’t of the Interior, 876 F.3d 1144, 1163 (9th Cir. 2017) (quotation omitted). 17 To defeat a motion to dismiss, a plaintiff must make sufficient factual allegations to 18 establish a plausible entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). 19 Such allegations must amount to “more than labels and conclusions, [or] a formulaic recitation of 20 the elements of a cause of action.” Id. at 555. Instead, the complaint must include “a short and 21 plain statement of the claim” that shows the plaintiff “is entitled to relief” and gives the 22 defendants “fair notice of what the claim is and the grounds upon which it rests.” Id. (simplified). 23 1 There is no respondeat superior liability for government entities under section 1983. 2 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). “[A] local 3 government may not be sued under § 1983 for an injury inflicted solely by its employees or 4 agents. Instead, it is when execution of a government’s policy or custom . . . inflicts the injury

5 that the government as an entity is responsible under § 1983.” Id. at 694. To establish municipal 6 liability under Monell, a plaintiff “must establish: (1) that he possessed a constitutional right of 7 which he was deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts to 8 deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the policy is the 9 ‘moving force behind the constitutional violation.’” Oviatt By & Through Waugh v. Pearce, 954 10 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388-91 11 (1989)). A plaintiff can establish a policy, practice, or procedure for a Monell claim by 12 demonstrating that a municipality had “(1) an official policy; (2) a pervasive practice or custom; 13 (3) a failure to train, supervise, or discipline; or (4) a decision or act by a final policymaker.” 14 Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019).

15 I must “freely give leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). 16 I apply this policy “with extreme liberality.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 17 1048, 1051 (9th Cir. 2003) (quotation omitted). I may deny leave to amend on the sole basis that 18 the “proffered amendments would be nothing more than an exercise in futility.” Bonin v. 19 Calderon, 59 F.3d 815, 845 (9th Cir. 1995). 20 A. LVMPD is not liable under Monell. 21 LVMPD argues that Smith does not plausibly allege municipal liability because he made 22 only conclusory allegations that do not show that its policies, customs, or practices motivated a 23 constitutional violation. Smith responds that he makes specific allegations regarding LVMPD’s 1 de facto policies, failure to train, and ratification in handcuffing him too tightly. I grant 2 LVMPD’s motion and dismiss Smith’s claim without prejudice. 3 1. Smith does not plausibly allege a pervasive de facto policy or custom. 4 To adequately allege a de facto policy, a plaintiff must allege facts sufficient to show a

5 “longstanding practice or custom which constitutes the standard operating procedure of the local 6 government entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). “The custom must be so 7 ‘persistent and widespread’ that it constitutes a permanent and well settled city policy.” Id. 8 (quoting Monell, 436 U.S. at 691). Liability “may not be predicated on isolated or sporadic 9 incidents,” rather “it must be founded upon practices of sufficient duration, frequency and 10 consistency that the conduct has become a traditional method of carrying out policy.” Id. 11 LVMPD argues that Smith relies on conclusory statements. It argues that Smith does not 12 plausibly allege facts showing that a de facto policy was in place at the time of the incident, such 13 as prior incidents of unconstitutional handcuffing. Smith responds that LVMPD had a de facto 14 policy of using handcuffs as a means of punishment, referencing his experience with nine

15 officers over seven days while in the hospital. Smith cites Harris v. City of Henderson, an 16 unpublished decision which denied a motion to dismiss where the plaintiff alleged that “LVMPD 17 maintained de facto policies[] and organizational customs and cultures to handcuff . . . citizens . . 18 . and to give street justice to individuals whom LVMPD officers believed had disrespected their 19 authority.” No. 2:15-cv-00337-GMN-PAL, 2015 WL 7573194, at *3-4 (D. Nev. Nov. 24, 2015) 20 (simplified). Harris is not binding precedent and I disagree with its holding. 21 Smith fails to state a colorable Monell claim because he does not plead facts to plausibly 22 allege other instances of unconstitutional handcuffing. He does not support his contention that 23 “Nevada cases repeatedly evidence a history of Defendant LVMPD improperly using handcuffs 1 that injure citizens” by citation to case law. ECF No. 20 at 12. Smith does not identify facts 2 showing a longstanding pattern so prevalent as to establish a tradition. He does not identify past 3 incidents of the same nature, incidents with other officers in the department, or facts 4 demonstrating that LVMPD had a longstanding de facto policy that informed the officers’

5 alleged malfeasance. Therefore, I grant this part of LVMPD’s motion, I dismiss without 6 prejudice Smith’s claim based on a de facto policy, and I grant him leave to amend this claim if 7 he can properly do so.2 8 2. Smith does not plausibly allege a failure to train, supervise, or discipline. 9 In demonstrating a failure to train sufficient to establish a “policy or custom” under 10 Monell, the plaintiff must plead that the municipality showed “deliberate indifference to the 11 rights of persons with whom the police come into contact.” Canton, 489 U.S. at 388. In 12 considering claims based on a failure to train municipal employees, “a pattern of similar 13 constitutional violations by untrained employees is ordinarily necessary to demonstrate 14 deliberate indifference.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1145 (9th Cir. 2012)

15 (quotation omitted). Alternatively, a failure to train claim may succeed if the “need for more or 16 different training is so obvious, and the inadequacy so likely to result in the violation of 17 constitutional rights,” that the city can be said to “deliberately indifferent.” Canton, 489 U.S. at 18 390. 19 20

21 2 LVMPD argues that I should dismiss Smith’s claim with prejudice and without leave to amend. It argues that Smith has filed multiple amended complaints and still failed to sufficiently plead a 22 claim so further amendment would be futile. Despite the prior amended complaints, Smith may be able to allege facts supporting his Monell claim, and LVMPD does not argue that it would be 23 prejudiced. See United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). Therefore, I grant Smith leave to amend. 1 Smith alleges that it is the “policy, practice, and custom” of the LVMPD to “negligently 2 hire, train and supervise its officers.” ECF No. 20 at 12. That conclusory allegation is 3 insufficient. Smith pleads no specific facts regarding LVMPD training, nor does he show a 4 pattern of misconduct by officers that demonstrates deliberate indifference on the part of

5 LVMPD. Further, he does not plead facts to show a deficiency in training that is so obvious or 6 likely to result in constitutional violations that LVMPD could be deemed deliberately indifferent. 7 Therefore, I grant this part of LVMPD’s motion, I dismiss without prejudice Smith’s claim based 8 on failure to train, hire, and supervise, and I grant him leave to amend this claim. 9 3. Smith does not plausibly allege ratification by a final policymaker. 10 A plaintiff can establish liability based on ratification if he can “prove that an official 11 with final policy-making authority ratified a subordinate’s decision or action and the basis for it.” 12 Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). “There must, however, be evidence 13 of a conscious, affirmative choice.” Id. at 1347. There must be evidence of “a deliberate choice 14 to follow a course of action . . . among various alternatives by the official or officials responsible

15 for establishing final policy with respect to the subject matter in question.” Id. (quotation 16 omitted). “Nevada law designates the Sheriff of Clark County as the final policy-making 17 authority” for LVMPD. Hill v. Las Vegas Metro. Police Dep’t, 197 F. Supp. 3d 1226, 1234 (D. 18 Nev. 2016). 19 LVMPD argues that Smith fails to allege any actions taken by the Clark County Sheriff 20 that ratified the officers’ conduct. Smith responds that LVMPD “directed, encouraged, allowed, 21 and/or ratified” the officers’ acts and “failed to conduct a prompt and thorough investigation.” 22 ECF No. 20 at 10. Again, Smith fails to allege specific facts that the Sheriff made a conscious, 23 affirmative choice to ratify the officers’ conduct. He also does not identify facts regarding the 1 allegedly deficient investigation sufficient to demonstrate ratification by a policymaker. 2 Therefore, I grant this part of LVMPD’s motion, I dismiss without prejudice Smith’s claim based 3 on ratification, and I grant him leave to amend this claim. 4 B. CNLV is not liable under Monell.

5 CNLV joins LVMPD’s motion to dismiss as to Smith’s Monell claim and argues that he 6 does not plausibly allege municipal liability because he makes only sweeping allegations that do 7 not show that its policies, customs, or practices motivated a constitutional violation. Smith 8 responds that he makes specific allegations about CNLV’s de facto policies, failure to train, and 9 ratification in failing to provide medical care and sanitary conditions. As with the claim against 10 LVMPD, Smith fails to state a colorable Monell claim against CNLV, so I dismiss it without 11 prejudice. 12 1. Smith does not plausibly allege a pervasive de facto policy or custom. 13 As set forth above, to allege an actionable de facto policy, a plaintiff must show a 14 longstanding practice or custom so “persistent and widespread that it constitutes a permanent and

15 well settled city policy.” Trevino, 99 F.3d at 918 (quotation omitted). The plaintiff’s allegations 16 “must be founded upon practices of sufficient duration, frequency and consistency that the 17 conduct has become a traditional method of carrying out policy.” Id. 18 CNLV argues that Smith does not provide any specific facts to demonstrate the existence 19 of a policy, practice, custom, or scheme motivating the medical inattention or cell conditions. 20 Smith claims that it was a de facto policy of CNLV to “delay and provide minimal care that fails 21 to adequately address one’s medical needs.” ECF No. 20 at 13. He supports this claim with 22 allegations about his medical neglect and cell conditions. As with his claim against LVMPD, 23 Smith does not allege other instances of similar misconduct, nor does he provide facts supporting 1 that it was a permanent and well-settled city policy to not provide medical care or sanitary 2 conditions. Therefore, I grant this part of CNLV’s motion, I dismiss without prejudice Smith’s 3 claim based on a de facto policy, and I grant him leave to amend this claim. 4 2. Smith does not plausibly allege a failure to train, supervise, or negligently hire.

5 CNLV argues that Smith does not allege facts to establish that it failed to train its 6 employees in a manner that “amounts to deliberate indifference . . . and that the need for more or 7 different training is so obvious it constitutes deliberate indifference.” ECF No. 26 at 4. Smith 8 alleges that CNLV failed to train officers “to adequately recognize and adequately respond to 9 serious medical needs, including infections.” ECF No. 20 at 13. As with his claim against the 10 LVMPD, Smith does not plausibly allege facts to establish a pattern of similar constitutional 11 violations or facts showing that a “need for more or different training is so obvious.” Canton, 12 489 U.S. at 390. Therefore, I grant this part of CNLV’s motion, I dismiss without prejudice 13 Smith’s claim based on failure to train, and I grant him leave to amend this claim. 14 3. Smith does not plausibly allege ratification by a final policymaker.

15 A municipality may be subject to Monell liability if the plaintiff can “prove that an 16 official with final policy-making authority ratified a subordinate’s decision or action and the 17 basis for it.” Gillette, 979 F.2d at 1346-47. Ratification requires evidence that there was a 18 “conscious, affirmative choice” from that final policy maker. Id. at 1347. 19 CNLV argues that the officers named in this case are not officials with final policy- 20 making authority who could have ratified any decisions on behalf of CNLV. Therefore, it 21 contends that the officers’ actions cannot be relied on to establish Monell liability. Smith alleges 22 that CNLV has a practice of tolerating and ratifying the officers’ actions. But Smith does not 23 identify a final policymaker or offer facts supporting his claim that a final policymaker made a “conscious, affirmative choice” to ratify the officers alleged misconduct. Gillette, 979 F.2d at 2|| 1347. He claims that the city “failed to conduct a prompt and thorough investigation,” but he 3|| does not identify who conducted that allegedly deficient investigation, nor does he identify any 4|| failures, practices, or the outcome of that investigation. ECF No. 20 at 13. Therefore, I grant this 5] part of CNLV’s motion, I dismiss without prejudice Smith’s claim based on ratification, and I 6] grant him leave to amend this claim. 7) II. CONCLUSION 8 I THEREFORE ORDER that the defendants’ motions to dismiss (ECF Nos. 25, 26) are 9] GRANTED. Smith’s Monell claims are dismissed without prejudice. 10 I FURTHER ORDER that Smith may file a third amended complaint to assert Monell claims by August 10, 2026, if sufficient facts exist to plausibly allege such claims. 12 DATED this 9th day of July, 2026. 13 ge— 15 CHIEF UNITED STATES DISTRICT JUDGE

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