Roberts v. NYE Cnty. Sheriff's Office

CHELSEA ROBERTS, individually, and as heir of deceased G.E.D.; CHELSEA ROBERTS as the parent and legal guardian on behalf of G.E.D., deceased minor child; CHELSEA ROBERTS, as the parent and legal guardian of J.E.D., a minor, individually and as heir of MICHAEL DURMEIER, Plaintiffs, v. NYE COUNTY SHERIFF'S OFFICE, a subdivision of the STATE OF NEVADA; DEPARTMENT OF PUBLIC SAFETY, DIVISION OF NEVADA HIGHWAY PATROL, a political subdivision of the STATE OF NEVADA; BUREAU OF LAND MANAGEMENT, a political subdivision of the STATE OF NEVADA; NYE COUNTY DEPUTY BREANNA NELSON; BUREAU OF LAND MANAGEMENT OFFICER RYAN GALLAGHER; NYE COUNTY LIEUTENANT ALAN W. SCHRIMPF; NYE COUNTY DETECTIVE BROOKE GENTRY; NYE COUNTY DEPUTY MICHAEL MOKESKI; NYE COUNTY TRAINEE ISAAC CHAMPLIN; NYE COUNTY DETECTIVE DANIEL FISCHER; NEVADA HIGHWAY PATROL TROOPER LUKE STANG; NYE COUNTY, a County of State of Nevada; DOE OFFICERS, AGENTS, or the like I through X, inclusive; and ROE CORPORATIONS I through X, inclusive, ROE AGENCIES OR POLITICAL SUBDIVISIONS I -X, Defendants.

No. 2:22-cv-00398-RFB-EJY

United States District Court, D. Nevada

February 23, 2023

ORDER AND REPORT AND RECOMMENDATION

RE: ECF NO. 50

ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiffs' Motion for Leave to File Their Second Proposed Second Amended Complaint in Accordance with FRCP 15(a) (the “Motion” or “Motion to Amend”).

ECF No. 50. The Court reviewed the Motion, Defendants' Response (ECF No. 51),^[1] and Plaintiffs' Reply. ECF No. 54.

I. RELEVANT BACKGROUND

A. Procedural Status of the Case.

As the Court prepares this Order, there are four fully briefed Motions to Dismiss pending (ECF Nos. 11, 12, 13, and 15) each of which takes aim at Plaintiffs' Complaint filed in this Court. The Bureau of Land Management also filed a Motion to Dismiss, which Plaintiffs did not oppose. ECF Nos. 43, 44. Plaintiffs technically have two Motions for Leave to file amended complaints pending, the Motion decided here and a Motion for Leave to File an Amended Complaint (ECF No. 32).

B. Summary of Facts.^[2]

The events giving rise to the instant litigation are tragic. On March 27, 2021, at around 11:00 a.m., Tyler Kennedy (“Kennedy”) awoke in his vehicle, which was parked adjacent to a truck stop and RV park on U.S. 95 in Amargosa Valley, Nevada. ECF No. 50-1 ¶ 25. Kennedy proceeded to engage in the use of fentanyl and methamphetamine leading several hours later to a verbal altercation with the owner of the RV park who called 911 Id. ¶¶ 25-29. The RV park owner reported Kennedy threatened him and asked him for methamphetamine. Id. ¶ 29. At around 1:41 p.m., Kennedy was approached by Nye County Deputy Breanna Nelson (“Deputy Nelson” or “Nelson”) who, over the course of the next forty-five minutes, was joined by at least eight other law enforcement officers from three federal and state agencies. Id. ¶¶ 30-32.

While additional details of the alleged interactions between Kennedy and law enforcement are discussed below, it is undisputed that at approximately 2:25 p.m. Kennedy drove his vehicle onto U.S. 95 heading north, Deputy Nelson followed him for at least 30 minutes, and after Deputy Nelson stopped following Kennedy, Kennedy pulled off the highway, proceeded to smoke fentanyl and/or methamphetamine and then, again, resumed driving. Id. ¶¶ 71, 73, 84-86, 88. At or near 3:50 p.m., Kennedy crossed the centerline into the lane designated for oncoming traffic in an attempt to pass several vehicles and crashed head on into a vehicle carrying five people: Michael Durmeier (“Durmeier”), his fiance Lauren Starcevich (“Starcevich”), Starcevich's daughter Emerson, and Durmeier's minor children G.E.D. and J.E.D (collectively the “Victims”). Id. ¶¶ 21, 88-90. Starcevich and G.E.D. were killed instantly. Id. ¶ 90. Durmeier died several minutes after the crash. Id. Emerson survived with serious injuries, and J.E.D. was comatose for several weeks and ultimately suffered brain damage. Id. ¶ 91. Kennedy sustained minor injuries. Id. ¶ 92.

Plaintiffs assert Defendants' policies, procedures, actions, and inactions led directly to Kennedy's driving while intoxicated and hitting the Victims' car head on in their lane of traffic. Id. ¶ 24. Defendants' actions forming the focus of Plaintiffs' complaint include:

• Kennedy was assured by law enforcement officers they did not care about his drug use and they would only instigate criminal action if he had “a firearm or 100 pounds of marijuana” in his car. Id. ¶ 34;

• Law enforcement found the remains of fentanyl pills, along with paraphernalia used for smoking fentanyl and/or methamphetamine; however, the officers did not seize Kennedy's supply of drugs or drug paraphernalia. Id. ¶¶ 37-38;

• After determining an alleged gunshot fired by Kennedy was fireworks, the officers present stopped all attempts to investigate or detain Kennedy. Id. ¶ 39;

• Prior to departing the scene and without arresting or detaining Kennedy, Detective Fischer (“Fischer”) told Kennedy “We're looking for guns. If you ain't got a gun, we don't give a shit.” Detective Gentry (“Gentry”), who was standing with Fischer, told Kennedy to “drive safe.” Id. ¶ 40;

• Fischer, when speaking with Lieutenant Schrimpf (“Schrimpf”), stated Kennedy was “chasing pills,” had “pinpoint” eyes, and was “probably under the influence.” Id. ¶ 41;

• In an attempt to avoid mandatory completion of relevant paperwork, Gentry told Nelson she should “[j]ust tell ... [Kennedy] not to do drugs.” Id. ¶ 42;

• Deputy Nelson told Kennedy “Alright, yeah bro, your pills are going in the trash, alright? Don't do drugs.” Id. ¶ 44;

• Following further discussions with Nelson and Schrimpf about Kennedy's drug use in which Kennedy stated “he had to smoke pills or else he'd get sick,” Deputy Nelson told Kennedy “Alright, that's your choice.” Id. ¶¶ 45-51 (emphasis deleted);

• Schrimpf told Kennedy “You're going to Oregon, so I don't need to trespass you today.” Id. ¶ 55; • Kennedy responded to the comments from all the officers: “Alright, I'm gonna go in and get what I was coming here for, and then I'll be on my way.” Id. ¶ 57;

• Deputy Nelson, in parting words to Kennedy, told him “Yeah, your keys are on the front seat of your car.” Id. ¶ 58; and,

• As Deputy Nelson and Schrimpf walked away from Kennedy, Deputy Nelson stated to Lieutenant Schrimpf, “That was a huge waste of time.” Id. ¶ 59.

Plaintiffs contend these actions and words demonstrate (1) Defendants' knowledge of Kennedy's intoxicated and agitated state, (2) clear communication to Kennedy that he would not be arrested despite possessing illegal drugs, and (3) their decision to do nothing except to urge Kennedy back on the road and out of their jurisdiction, demonstrating deliberate indifference to Plaintiffs' constitutional rights. Id. ¶¶ 38, 45-51, 55-58, 62, 66, 126-128. Plaintiffs assert Defendants knew the side effects of fentanyl and methamphetamine-agitation and fear-and knew Kennedy was experiencing those effects. Id. ¶ 64. Defendants knew from Kennedy's statements that when he was under the influence of these drugs he was prone to speeding. Id. ¶ 65.

Plaintiffs allege even after Kennedy had driven away from the initial encounter with law enforcement, Deputy Nelson followed him for at least 30 minutes, if not an hour, exacerbating Kennedy's fear, agitation, and desire to get out of Nye County (and Nevada generally). Id. ¶ 73-76. Not only had Kennedy already consumed fentanyl and methamphetamine, but he continued to possess illegal drugs he did not want confiscated. Id. ¶¶ 77-78. Kennedy was driving without a valid driver's license, which Deputy Nelson and other law enforcement either knew or, in the course of their interactions with Kennedy, should have known and ignored when they let Kennedy go. Id. ¶ 79. Thus, Kennedy's agitation is alleged to have greatly increased. Id. ¶¶ 77-79. Indeed, as a final act of total indifference to her duty and the safety of others, Plaintiffs allege that while Deputy Nelson followed Kennedy on U.S. 95, she observed Kennedy violating traffic laws and driving erratically but did nothing in response. Id. ¶¶ 80-82. Plaintiffs allege that after Nelson stopped following Kennedy, Kennedy pulled off the road and smoked his remaining supply of fentanyl and methamphetamine. Id. ¶¶ 85-86.

Plaintiffs' overarching argument is that but for the actions of Defendants, Kennedy: (1) would have been off the road and not driving at all; (2) would not have been in an increased agitated state when driving; (3) would not have had access to additional fentanyl and/or methamphetamine; and (4) would not have been driving erratically at high speeds when he got back on the road. Id. ¶ 87. Plaintiffs contend Defendants encouraged Kennedy to get back on the road and to leave Nye County, which led directly to Kennedy and his vehicle becoming a “mobile hazardous condition” that crashed head on into the Victims. Id. ¶¶ 95-99. Plaintiffs state there was no legitimate policy objective for Defendants' actions or inactions; rather, it was a desire to reduce their workloads by getting Kennedy out of their jurisdiction that led to Defendants' decisions. Id. ¶¶ 101-02.

With respect to the Nye County Sheriff's Office policies Plaintiffs focus on Policy 3009, which states: “Individuals under the influence of intoxicating liquor or drugs observed prior to the act of driving a motor vehicle shall, as possible, be prevented from driving.” Id. ¶ 107. Plaintiffs allege then-Nye County Sheriff Sharon Wehrly (“Wehrly” or “Sheriff Wehrly”) established “a policy-explicit or implicit-of declining to enforce anti-impaired driving laws against non-resident impaired drivers and of instead encouraging them to pass through their jurisdiction as quickly as possible.” Id. ¶...