Brown v. Tromba

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 MARLON LORENZO BROWN, Case No.: 2:17-cv-02396-APG-BNW

4 Plaintiff Order Granting LVMPD and Tromba’s

Motion to Dismiss with Leave to Amend

5 v.

6 DANTE TROMBA, et. al., [ECF No. 101]

7 Defendants

8

9 Plaintiff Marlon Lorenzo Brown sues the City of Las Vegas, the Las Vegas Metropolitan

10 Police Department (LVMPD), Clark County, Steve Wolfson in his official capacity, Joseph

11 Lombardo, and Dante Tromba under 42 U.S.C. § 1983 and Nevada law for alleged violations

12 arising out of Brown’s arrest while on bond.1 The operative complaint is Brown’s third amended

13 complaint at ECF No. 44. See ECF No. 96 at 23. Brown asserts claims for: (1) false arrest and

14 false imprisonment under § 1983; (2) denial of equal protection and due process under § 1983;

15 (3) intentional infliction of emotional distress; (4) municipal liability under § 1983 for alleged

16 unconstitutional policies and practices; and (5) negligent hiring, retention, supervision, and

17 training.

18 LVMPD and Tromba move to dismiss the claims against them on various grounds. They

19 contend I should dismiss the claims with prejudice because Brown has already amended multiple

20 times. Brown opposes dismissal. The parties are familiar with the facts, so I repeat them here

21

22

1 Brown also sued the Clark County District Attorney’s Office, Danae Adams, Bruce Nelson,

23

and Steve Wolfson in his individual capacity, but he agreed to dismiss his claims against them.

ECF No. 104.

1 only as necessary to resolve the motion. I grant LVMPD and Tromba’s motion, with leave to

2 amend if facts exist to do so.

3 I. ANALYSIS

4 In considering a motion to dismiss, I take all well-pleaded allegations of material fact as

5 true and construe the allegations in a light most favorable to the non-moving party. Kwan v.

6 SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, I do not assume the truth of

7 legal conclusions merely because they are cast in the form of factual allegations. Navajo Nation

8 v. Dep’t of the Interior, 876 F.3d 1144, 1163 (9th Cir. 2017). A plaintiff must make sufficient

9 factual allegations to establish a plausible entitlement to relief. Bell Atl. Corp. v. Twombly, 550

10 U.S. 544, 556 (2007). Such allegations must amount to “more than labels and conclusions, [or] a

11 formulaic recitation of the elements of a cause of action.” Id. at 555.

12 A. Section 1983 Claims

13 For Brown’s claims under 42 U.S.C.§ 1983, he must allege that the defendant acted under

14 color of law and the defendant’s “action resulted in a deprivation of a constitutional right or a

15 federal statutory right.” McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000). The defendants

16 do not dispute that they acted under color of law. Thus, the question is whether Brown has

17 plausibly alleged that the defendants violated his constitutional rights.

18 Tromba has asserted qualified immunity. “Qualified immunity shields government

19 officials from civil liability unless a plaintiff establishes that: (1) the official violated a

20 constitutional right; and (2) that right was clearly established at the time of the challenged

21 conduct, such that every reasonable official would have understood that what he is doing violates

22 that right.” Morales v. Fry, 873 F.3d 817, 821 (9th Cir. 2017) (simplified). I may answer these

23 two questions in any order. Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011).

1 Brown bears the burden of showing the right at issue was clearly established. Id.

2 “Clearly established means that, at the time of the officer’s conduct, the law was sufficiently

3 clear that every reasonable official would understand that what he is doing is unlawful.” D.C. v.

4 Wesby, 138 S. Ct. 577, 589-90 (2018) (simplified). Brown does not necessarily have to point to

5 a case directly on point, but “existing precedent must have placed the statutory or constitutional

6 question beyond debate, such that every reasonable official . . . would have understood that he

7 was violating a clearly established right.” Morales, 873 F.3d at 823 (simplified). And that

8 precedent must be “settled,” meaning that “it is dictated by controlling authority or a robust

9 consensus of cases of persuasive authority.” Wesby, 138 S. Ct. at 589-90 (simplified).

10 Whether the right at issue was clearly established is a question of law for the court.

11 Morales, 873 F.3d at 821. This inquiry is made “in light of the specific context of the case.”

12 Rico v. Ducart, 980 F.3d 1292, 1298 (9th Cir. 2020) (quotation omitted). Thus, I “must not

13 define clearly established law at a high level of generality, since doing so avoids the crucial

14 question whether the official acted reasonably in the particular circumstances that he or she

15 faced.” Wesby, 138 S. Ct. at 590 (quotation omitted). “A rule is too general if the unlawfulness

16 of the officer’s conduct does not follow immediately from the conclusion that the rule was firmly

17 established.” Id. (simplified).

18 1. False Arrest and False Imprisonment (count one)

19 Count one alleges that Brown was on lawful bail when Tromba arrested him. ECF No. 44

20 at 8, 10. The Third Amended Complaint (TAC) alleges that Tromba stated in a report that he

21 received “notice from my supervision” that Brown’s bail was being revoked, “which would

22 violate the court order from District Court #9 stating that his release was with bail and House

23 Arrest.” Id. at 8. According to the TAC, Tromba reported that Michael Slyman of Easy Bail

1 Bonds advised him that Brown was not compliant with bail conditions and was a flight risk who

2 was “going to escape this Friday.” Id. (internal quotation marks omitted). Slyman prepared a

3 voluntary statement stating, among other things, that one of the other individuals who posted

4 Brown’s bond, Pimkee Rajvongthong, reported to Slyman that Brown had beaten her, but she

5 was too afraid to report it to police. Id. at 8-9. Brown alleges that at the time Tromba arrested

6 him, Easy Bail Bonds had not moved to exonerate the bond and no court had ordered the bond

7 exonerated. Id. at 8. Brown alleges that he thus was on lawful bond. Id. He also alleges that

8 Rajvongthong later stated in an affidavit that she never told Slyman that she wanted off the bond.

9 Id. at 9. According to the TAC, the Nevada Department of Insurance subsequently revoked Easy

10 Bail’s license because Slyman caused Brown’s early surrender without good cause. Id. at 10.

11 Brown alleges that Tromba “knowingly, intentionally, wantonly and maliciously plotted

12 to, and executed a plan” to arrest Brown “while he was on lawful bond, which had not been

13 exonerated,” and without probable cause. Id. at 10-11. He also alleges that after he was arrested,

14 “Defendants” conspired to withhold evidence of his arrest despite his bond being valid and

15 knowingly made false representations to judges to ensure Brown would not be released. Id. at 11.

16 LVMPD and Tromba argue that to the extent this claim is based on alleged false

17 representations, it must satisfy Federal Rule of Civil Procedure 9(b)’s heightened pleading

18 standard. They also contend that the allegations of misrepresentations and conspiracy are

19 conclusory and improperly lump all defendants together without identifying each defendant’s

20 role. Next, they assert that by Brown’s own allegations, Tromba had received credible

21 information to support arresting him and Brown does not allege that Tromba knew the

22 information was incorrect. Further, they contend that the Nevada state court already determined

23

1 that Tromba’s actions were legally valid, and Brown cannot relitigate that issue here.

2 Alternatively, Tromba asserts qualified immunity.

3 Brown responds that he need not plead with particularity under Rule 9(b) because this

4 claim does not sound in fraud. Rather, he contends, the TAC alleges the arrest was without

5 probable cause. Brown argues that he has plausibly alleged that Tromba knowingly and

6 intentionally executed a plan to arrest Brown while he was on bond. Brown asserts that Tromba

7 based the arrest on the belief that Brown’s bond would be revoked in the future, but that Tromba

8 knew the bond had not been revoked at the time of the arrest. Brown contends that Tromba

9 could not rely on hearsay reported by the bail bondsman without further investigation. Brown

10 asserts that he is not trying to relitigate the issue because the Nevada court in the criminal case

11 did not address probable cause. Rather, he contends that the Nevada Department of Insurance

12 determined there was not good cause to revoke Brown’s bond and the defendants should not be

13 allowed to relitigate that determination. Brown argues that he has plausibly alleged that Tromba

14 misrepresented that the bond had been revoked to justify Brown’s arrest and altered dates on

15 documents to make it appear that the bond had been revoked prior to the arrest. Finally, Brown

16 argues that qualified immunity does not apply because it was clearly established that his pretrial

17 release could not be revoked unless there was probable cause that he had violated a condition of

18 release.

19 “A warrantless arrest must be supported by probable cause to comport with the Fourth

20 Amendment.” Krainski v. Nevada ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d

21 963, 969 (9th Cir. 2010). “Probable cause exists if the facts and circumstances known to the

22 officer warrant a prudent man in believing that an offense has been committed.” Id. (simplified).

23 I evaluate “the totality of the circumstances known to the officers” to determine whether there

1 was probable cause for the arrest. United States v. Butler, 74 F.3d 916, 920 (9th Cir. 1996)

2 (quotation omitted). “[P]robable cause supports an arrest so long as the arresting officers had

3 probable cause to arrest the suspect for any criminal offense, regardless of their stated reason for

4 the arrest.”2 United States v. Struckman, 603 F.3d 731, 741 (9th Cir. 2010) (quotation omitted).

5 “Probable cause to arrest may be based upon hearsay statements.” Butler, 74 F.3d at 920.

6 To establish probable cause, an officer “may not solely rely on the claim of a citizen witness, but

7 must independently investigate the basis of the witness’ knowledge or interview other

8 witnesses.” Struckman, 603 F.3d at 742 (simplified). “A sufficient basis of knowledge is

9 established if the [witness] provides facts sufficiently detailed to cause a reasonable person to

10 believe a crime had been committed and the named suspect was the perpetrator.” Peng v. Mei

11 Chin Penghu, 335 F.3d 970, 978 (9th Cir. 2003) (quotation omitted). An officer is entitled to

12 qualified immunity if he was reasonably mistaken that probable cause to arrest existed. Krainski,

13 616 F.3d at 969.

14 a. Brown’s Arrest

15 Even assuming Tromba lacked probable cause to arrest Brown, Tromba is entitled to

16 qualified immunity. Based on the allegations in the TAC, Tromba could have reasonably

17 believed that Slyman, as Brown’s bail bondsman, would know that Brown was not complying

18 with his bail conditions. Additionally, Tromba reasonably could believe that Slyman’s

19 statements were sufficiently detailed to support either good cause for Slyman to revoke the bond,

20 in which case Brown would not be compliant with his release conditions, or probable cause that

21 Brown was about to flee and had assaulted Rajvongthong. Brown alleges that Slyman was

22

23

2 Brown’s reliance on the fact that the stated reason for his being taken into custody was because

the bond was revoked is therefore not dispositive if other grounds supported the arrest.

1 untruthful because Rajvongthong later denied that she told Slyman she wanted off the bond and

2 because the Nevada Department of Insurance later found Slyman did not have good cause to

3 cause Brown’s early surrender. But Brown does not allege that Tromba knew or should have

4 known that Slyman was untruthful or untrustworthy. Nor does he allege any facts that would

5 have tipped Tromba off that he should not believe Slyman, who at that time was a licensed bail

6 bondsman. Moreover, Brown does not point to clearly established law that would put Tromba

7 on notice that he would violate the Fourth Amendment by taking a person on bond into custody

8 where that person’s bail bondsman reports that the person is not compliant with the bond

9 conditions and that he heard from a co-signor on the bond that the person is a flight risk and had

10 committed an assault while on bond.

11 I therefore dismiss this portion of claim one against Tromba. I also dismiss this claim

12 against LVMPD because, as discussed below with respect to the municipal liability claim,

13 Brown does not allege facts plausibly showing that an LVMPD policy, custom, or practice was

14 the moving force behind any alleged violation.

15 b. Misrepresentations to Judges

16 Brown asserts judicial misrepresentation claims related to his post-arrest incarceration

17 under both the Fourth Amendment in count one and the Due Process Clause of the Fourteenth

18 Amendment in count two. The constitutionality of his post-arrest incarceration is governed by

19 the Due Process Clause of the Fourteenth Amendment. See Tatum v. Moody, 768 F.3d 806, 815

20 (9th Cir. 2014). I therefore dismiss this portion of Brown’s claim under the Fourth Amendment.

21 2. Equal Protection and Due Process (count two)

22 LVMPD and Tromba move to dismiss this claim, arguing that the allegations are properly

23 governed by the Fourth Amendment because the claim relies on the same conduct as count one

1 and is redundant of count one. Alternatively, LVMPD and Tromba argue that the allegations are

2 too conclusory and lump the defendants together, so they do not know what they are alleged to

3 have done as opposed to other defendants. Finally, they contend that by Brown’s own

4 allegations, Tromba had received credible information to support arresting him, and Brown does

5 not allege that Tromba knew the information was incorrect.

6 Brown responds that he has asserted an equal protection claim that he was treated

7 differently than similarly situated persons on lawful bail. He also contends that he has alleged a

8 due process violation because he alleges that the police, prosecutors, and witnesses conspired to

9 misrepresent his bail had been revoked when it had not been, to justify his continued detention.

10 a. Equal Protection

11 An “equal protection claim can in some circumstances be sustained even if the plaintiff

12 has not alleged class-based discrimination, but instead claims that she has been irrationally

13 singled out as a so-called class of one.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601

14 (2008) (internal quotation marks omitted). To succeed on his class-of-one claim, Brown must

15 plausibly allege that Tromba and LVMPD “(1) intentionally (2) treated [Brown] differently than

16 other similarly situated [persons on bail], (3) without a rational basis.” Gerhart v. Lake Cnty.,

17 Mont., 637 F.3d 1013, 1021-22 (9th Cir. 2011).

18 Brown has not plausibly alleged this claim because he fails to allege facts related to any

19 similarly situated individuals or how, given Slyman’s statements, Tromba lacked a rational basis

20 to arrest Brown. I therefore dismiss this claim against Tromba. I also dismiss this claim against

21 LVMPD because, as discussed below with respect to the municipal liability claim, Brown does

22 not allege facts plausibly showing that an LVMPD policy, custom, or practice was the moving

23 force behind any alleged violation.

1 b. Judicial Deception

2 To state a judicial deception claim, Brown must plausibly allege that (1) the defendant

3 made misrepresentations or omissions material to a judicial decision, and (2) “the

4 misrepresentations or omissions were made intentionally or with reckless disregard for the

5 truth.” Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011).

6 Even under Rule 8’s more liberal pleading standard, Brown does not plausibly allege that

7 Tromba (or anyone else) misrepresented facts to judges to keep Brown detained. Brown’s

8 allegation that the “Defendants” made misrepresentations to judges to keep Brown in custody

9 after his initial detention is conclusory and improperly lumps all defendants together so that none

10 know what misrepresentation they were alleged to have made or to whom. Brown has not

11 plausibly alleged that a misrepresentation was even made because he gives no factual content

12 about what representation was made or why it was false. Nor does he allege how it caused his

13 continued detention. And although he alleges the defendants conspired to keep him in custody,

14 that allegation is likewise conclusory. Brown attempts to give some factual content to this

15 allegation in his opposition to the motion, but I cannot consider those facts because they are not

16 pleaded in the TAC. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). I therefore

17 dismiss this portion of count two against Tromba. I also dismiss this claim against LVMPD

18 because, as discussed below with respect to the municipal liability claim, Brown does not allege

19 facts plausibly showing that an LVMPD policy, custom, or practice was the moving force behind

20 any alleged violation.

21 3. Municipal Liability (count four)

22 LVMPD moves to dismiss this claim because the allegations of the policies or customs

23 are conclusory and lack factual content, there are no allegations of how the policies led to

1 Brown’s arrest and detention, and Brown relies on a single incident to attempt to show

2 widespread policies or customs. Brown responds that he has alleged that LVMPD had a policy

3 and custom of not addressing its officers’ unlawful conduct, resulting in officers repeatedly

4 violating constitutional rights. Brown contends he alleges three theories of misconduct that

5 LVMPD condones: (1) refusing to turn over evidence even when ordered by a court to do so;

6 (2) making misrepresentations to courts; and (3) tampering with investigators and witnesses.3 He

7 asserts that he has adequately alleged that Tromba made misrepresentations in official documents

8 and that he has alleged multiple instances of several LVMPD officers making misrepresentations

9 and withholding evidence in another case to show a widespread custom. He also asserts that he

10 has adequately alleged deliberate indifference because he has alleged that Lombardo knew of

11 Tromba’s conduct in this case and was aware of an FBI investigation into LVMPD’s vice unit

12 but took no action.

13 There is no respondeat superior liability under § 1983. Benavidez v. Cnty. of San Diego,

14 993 F.3d 1134, 1153 (9th Cir. 2021). Instead, a municipality may be held liable under § 1983

15 only for constitutional violations resulting from an official policy or custom. Id. This “can

16 include written policies, unwritten customs and practices, failure to train municipal employees on

17 avoiding certain obvious constitutional violations, . . . and, in rare instances, single constitutional

18 violations are so inconsistent with constitutional rights that even such a single instance indicates

19 at least deliberate indifference of the municipality.” Id. (internal citation omitted). The policy or

20

21

3 The TAC also alleges LVMPD condoned its officers’ conduct in extorting individuals to give

up their rights, publicly disclosing the identity of confidential informants, and filing harassing

22

complaints against individuals speaking out against LVMPD. ECF No. 44 at 14-15. In his

response to the motion to dismiss, Brown does not address these allegations. He does not

23

plausibly allege facts to support the allegations, nor does he suggest any plausible means for

those alleged acts to be the driving force behind his own arrest and detention.

1 practice must be “the moving force behind the constitutional violation.” Gordon v. Cnty. of

2 Orange, 6 F.4th 961, 973 (9th Cir. 2021) (quotation omitted). “In other words, there must be a

3 direct causal link between a municipal policy or custom and the alleged constitutional

4 deprivation.” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (en

5 banc) (quotation omitted).

6 a. Policy or Practice of Condoning Unlawful Conduct

7 i. Refusing to Turn Over Evidence

8 Brown has not plausibly alleged a pattern or practice of refusing to turn over evidence,

9 nor does he allege how this alleged practice led to his arrest or continued detention. Brown

10 identifies only a single case where LVMPD allegedly did not comply with court orders to turn

11 over documents in the Ocean Fleming case. ECF No. 44 at 17. Brown does not allege in the

12 TAC that LVMPD was ordered to turn over documents in his case and refused to do so or how

13 any alleged custom or practice of refusal to turn over evidence directly led to his arrest or

14 detention. I therefore dismiss this portion of his municipal liability claim.

15 ii. Misrepresenting Facts to the Courts

16 Brown contends that he has adequately alleged that Tromba misrepresented facts in

17 official documents to mislead judges into believing that Brown’s bail had been revoked before

18 the arrest. But, as discussed above, Brown has not adequately alleged facts plausibly showing

19 that Tromba made a misrepresentation. Nor has Brown plausibly alleged facts showing a policy,

20 custom, or practice of making misrepresentations to the court. Brown relies on allegations that

21 officers in LVMPD’s vice unit were corrupt in relation to the Ocean Fleming case and other

22 unidentified cases, but Brown does not identify what misrepresentations those officials made to

23 judges. Instead, he alleges the officers were in sexual relationships with witnesses and

1 prosecutors, and coached witness testimony. ECF No. 44 at 15-16. He therefore has not shown a

2 pattern or practice of LVMPD officers making misrepresentations to judges. Moreover, Brown

3 does not allege that Tromba was in the vice unit or that the alleged pattern of misrepresentations

4 permeated other officers in the police department beyond the three identified in the TAC such

5 that it was a widespread LVMPD custom. I therefore dismiss this portion of his municipal

6 liability claim.

7 iii. Tampering with Investigators and Witnesses

8 Brown does not allege that Tromba tampered with an investigator or witness. I therefore

9 dismiss this portion of his Monell claim.

10 b. Deliberate Indifference

11 Brown contends that Sheriff Lombardo was LVMPD’s primary policy maker and was

12 aware that Judge Tobiasson sought Brown’s arrest. He also argues that Lombardo knew about

13 the FBI investigation into the vice department related to the Ocean Fleming case but took no

14 action.

15 It is unclear what theory Brown is proceeding under in relation to these allegations, as he

16 mentions ratification, deliberate indifference, and failure to train, but he does not state what

17 applies in this case and does not relate any plausibly alleged facts to these theories. For example,

18 he does not state what it is that Lombardo knew about Brown’s arrest that would suggest a

19 constitutional violation had occurred that Lombardo ratified or what inaction Lombardo’s

20 deliberate indifference caused. See Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004) (stating that

21 a plaintiff seeking to impose municipal liability based on a policy of deliberate inaction must

22 show a municipal policy that “amounts to deliberate indifference to the plaintiff’s constitutional

23 right” and that the policy was the “moving force behind the constitutional violation”

1 (simplified)); Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (stating that for

2 ratification, a policymaker must “approve a subordinate’s decision and the basis for it before the

3 policymaker will be deemed to have ratified the subordinate’s discretionary decision” (emphasis

4 omitted)).

5 By Brown’s own allegations, Lombardo learned about Judge Tobiasson’s alleged desire

6 to have Brown arrested after Tromba had already arrested Brown. ECF No. 44 at 8-9. Brown

7 does not allege facts to plausibly show that Lombardo had reason to know or suspect that there

8 was anything wrong with Brown’s arrest or that he approved the arrest and the basis for it. Nor

9 does he identify what inaction was deliberately indifferent to his rights or how that policy of

10 inaction was the moving force behind any constitutional violation. Finally, he does not allege

11 any facts related to the deficient hiring, training, or supervision of Tromba or how that deficiency

12 led to his arrest and continued detention. See Benavidez, 993 F.3d at 1153-54 (stating that to

13 allege a failure to train, “a plaintiff must include sufficient facts to support a reasonable inference

14 (1) of a constitutional violation; (2) of a municipal training policy that amounts to a deliberate

15 indifference to constitutional rights; and (3) that the constitutional injury would not have resulted

16 if the municipality properly trained their employees”). I therefore dismiss this portion of the

17 Monell claim.

18 B. State Law Claims

19 1. Intentional Infliction of Emotional Distress (count three)

20 LVMPD and Tromba argue this claim fails because the alleged conduct is not extreme

21 and outrageous. They contend that the only factual allegations are that Tromba arrested Brown

22 without probable cause and while Brown’s bond was still valid. They assert that by Brown’s

23 own allegations, Tromba had a basis to think, even if mistakenly, that he had a basis to arrest

1 Brown. Brown responds that he has adequately alleged extreme and outrageous behavior

2 because he alleges that Tromba arrested him without probable cause and made intentional

3 misrepresentations in official documents.

4 To state a claim for intentional infliction of emotional distress, Brown must allege that

5 (1) the defendant engaged in “extreme and outrageous conduct with either the intention of, or

6 reckless disregard for, causing emotional distress,” (2) Brown “suffered severe or extreme

7 emotional distress,” and (3) causation. Dillard Dep’t Stores, Inc. v. Beckwith, 989 P.2d 882, 886

8 (Nev. 1999) (en banc). Outrageous conduct is behavior that goes “outside all possible bounds of

9 decency and is regarded as utterly intolerable in a civilized community.” Maduike v. Agency

10 Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998) (quotation omitted).

11 The Supreme Court of Nevada has referred to the Restatement (Second) of Torts § 46 as

12 relevant authority for IIED claims under Nevada law. See, e.g., Olivero v. Lowe, 995 P.2d 1023,

13 1026-27 (Nev. 2000); Selsnick v. Horton, 620 P.2d 1256, 1257 (Nev. 1980). The comments to

14 the Restatement offer examples of when a police officer’s conduct may be so outrageous as to

15 support an IIED claim. Some examples include where the officer attempts to extort money by a

16 threat of arrest, attempts to extort a confession by falsely telling the accused her child has been

17 injured in an accident and she cannot go to the hospital until she confesses, or otherwise engages

18 in an “extreme abuse” of his position. “The Court determines whether the defendant’s conduct

19 may be regarded as extreme and outrageous so as to permit recovery, but, where reasonable

20 people may differ, the jury determines whether the conduct was extreme and outrageous enough

21 to result in liability.” Chehade Refai v. Lazaro, 614 F. Supp. 2d 1103, 1121 (D. Nev. 2009).

22 Even taking Brown’s allegations as true, he has not plausibly alleged extreme and

23 outrageous conduct. The allegation that Tromba arrested Brown without probable cause, without

1 more, is not an extreme abuse of police power. Further, as discussed above, Brown has not

2 plausibly alleged that Tromba intentionally or recklessly made a false representation to secure

3 Brown’s continued detention. I therefore dismiss this claim.

4 2. Negligent Hiring, Retention, Supervision, and Training (count five)

5 LVMPD and Tromba argue that they are entitled to discretionary immunity under Nevada

6 Revised Statutes (NRS) § 41.032(2) for this claim. They contend that there are no factual

7 allegations to support bad faith in hiring, retention, supervision, or training that might deprive

8 them of discretionary immunity. Finally, they assert there are no plausibly alleged facts to

9 support this claim. Brown responds that these types of claims are not necessarily subject to

10 discretionary immunity because it is not discretionary to train and supervise officers on whether

11 they can arrest without probable cause or make false statements of fact in official records.

12 Decisions about how to properly train and supervise officers are entitled to discretionary

13 immunity because they involve individual judgment on the part of the policymakers or

14 supervisors and are based on considerations of social, economic, or political policy. Paulos v.

15 FCH1, LLC, 136 Nev. 18, 456 P.3d 589, 595 (Nev. 2020) (en banc) (holding that a police

16 department's hiring and training decisions are subject to discretionary immunity). Brown

17 contends that I should follow Chiles v. Underhill, which held that “the supervision and training

18 of employees is not a discretionary act” subject to discretionary immunity. Case No. 3:05-cv-

19 00179-LRH-RAM, 2006 WL 383521, at *8 (D. Nev. Feb. 17, 2006). I decline to do so because

20 that decision predates Paulos, and because “the great weight of authority in this district holds

21 that discretionary immunity applies to decisions relating to the hiring, training, and supervision

22 of employees.” Gardner v. City of Las Vegas, No. 2:16-cv-01384-GMN-CWH, 2017 WL

23 3087276, at *4 (D. Nev. July 20, 2017). I therefore dismiss this claim with prejudice.

1 C. Sheriff Lombardo

2 LVMPD argues that naming Sheriff Lombardo in his official capacity is redundant to

3 suing LVMPD and that to the extent count one is meant to be against Lombardo in his individual

4 capacity, there are no allegations that he personally participated in the alleged violation. Counsel

5 for LVMPD has not entered an appearance for Lombardo and identify themselves as counsel for

6 LVMPD and Tromba only. I therefore do not address any arguments regarding Lombardo.

7 D. Amendment

8 Under Rule 15(a)(2), I “should freely give leave when justice so requires.” I consider

9 five factors to assess whether to grant leave to amend under Rule 15(a): (1) bad faith, (2) undue

10 delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether plaintiff

11 has previously amended the complaint. Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty.,

12 708 F. 3d 1109, 1117 (9th Cir. 2013). Whether to grant leave to amend under Rule 15 lies within

13 my discretion. Zivkovic v. So. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). My

14 discretion to deny leave to amend “is particularly broad where [the] plaintiff has previously

15 amended the complaint” unsuccessfully. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149,

16 1159 (9th Cir. 1989).

17 Although Brown has made multiple attempts to amend, I will grant him one final

18 opportunity to plausibly allege the claims I have dismissed (except his state law claim for

19 negligent hiring, retention, supervision, and training), if facts exist to do so. Brown is advised to

20 support each claim with factual allegations because all complaints “must contain sufficient

21 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself

22 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). When claims are alleged

23 against multiple defendants, the complaint should clearly indicate which claims apply to which

defendant. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). A defendant should be able

read the complaint and understand “who is being sued, for what relief, and on what theory,

with enough detail to guide discovery.” Jd. Brown thus should identify each defendant and

support each claim with factual allegations about each defendant’s actions. Where multiple

claims are alleged, the complaint should identify which factual allegations give rise to each

6}|claim. Exhibits are not a substitute for a proper complaint. Instead, Brown should summarize

the information he believes to be relevant as part of the supporting facts for each claim asserted.

Brown must allege enough facts, not conclusions, to support each claim. Brown may not assert

any new claims or add any new parties in his fourth amended complaint.

10} 11. CONCLUSION

11 I THEREFORE ORDER that defendants Las Vegas Metropolitan Police Department and

12|| Dante Tromba’s motion to dismiss (ECF No. 101) is GRANTED.

13 I FURTHER ORDER that plaintiff Marlon Brown may file a fourth amended complaint

14|| consistent with this order. Failure to file a fourth amended complaint by December 9, 2022 will

in dismissal of all claims against defendants Las Vegas Metropolitan Police Department

and Dante Tromba with prejudice.

17 DATED this 14th day of November, 2022.

18 OIE

” ANDREWP.GORDON SS

0 UNITED STATES DISTRICT JUDGE

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