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Childs v. Las Vegas Metropolitan Police Department

United States District Court, District of Nevada

December 30, 2014

DONALD RICHARD CHILDS II, Plaintiff(s),
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Defendant(s).

ORDER

Presently before the court is defendant Las Vegas Metropolitan Police Department’s (hereinafter “defendant”) motion to dismiss. (Doc. # 6). Plaintiff Donald Richard Childs, II (hereinafter “plaintiff”) filed a response, (doc. # 10), and defendant filed a reply, (doc. # 12).

Also before the court is plaintiff’s motion to amend complaint. (Doc. # 10). Defendant filed a response. (Doc. # 12). Plaintiff did not file a reply, and the time to reply has now passed.

Also before the court is plaintiff’s request for judicial notice. (Doc. # 10).

Finally before the court is plaintiff’s motion to recuse. (Doc. # 16). Defendant did not file a response, and the time to respond has now passed.

I. Background

On June 30, 2014, plaintiff was involved in an incident with two Las Vegas Metropolitan Police Department (“LVMPD”) officers on the Fremont Street Experience. (Doc. # 1). On July 10, 2014, plaintiff filed a formal complaint and affidavit with LVMPD internal affairs. (Doc. # 1).

On September 19, 2014, plaintiff was involved in a similar incident with two different LVMPD officers. (Doc. # 1). Plaintiff was standing in a crowd at a red light on Fourth and Fremont Streets. (Doc. # 1). He observed four LVMPD officers and two squad cars nearby. Two of the officers then drove off in their squad car, while the other two remained at the intersection. (Doc. # 1).

When the light turned green, plaintiff and the other pedestrians began to cross the street. (Doc. # 1). At that time, one of the officers ran toward the crowd, grabbed plaintiff by the arm, and pulled him toward the parked squad car. (Doc. # 1). When plaintiff asked what the problem was, the officer told plaintiff that they were taking him to jail. (Doc. # 1).

Plaintiff was immediately handcuffed. (Doc. # 1). Plaintiff asked for the names and badge numbers of the officers. (Doc. # 1). The first officer then began removing all of the items from plaintiff’s pockets. (Doc. # 1).

Plaintiff stated that the officers were violating his Fourth Amendment rights with an unconstitutional search. (Doc. # 1). The second officer responded that the Fourth Amendment did not apply because plaintiff was being arrested. (Doc. # 1).

Plaintiff was arrested and taken to the City of Las Vegas Detention Center. (Doc. # 1). He was told that he had violated Nevada Revised Statute 484B.283 for failure of a pedestrian to obey traffic signals. Plaintiff was held in jail for hours with no idea of his release date. Plaintiff was eventually released. On September 23, 2014, he filed a second LVMPD internal affairs complaint and affidavit. (Doc. # 1).

On October 22, 2014, plaintiff filed a complaint in Nevada state court asserting claims for harassment, deprivation of rights under color of law in violation of 18 U.S.C. § 242, false arrest, fabrication of evidence, discrimination, unreasonable search and seizure, and due process violations. (Doc. # 1).

Defendant then removed the case to this court, and the parties filed the instant motions. (Doc. # 1).

II. Legal Standard

i. Judicial notice

Federal Rule of Evidence 201 provides for judicial notice of adjudicative facts. Under Rule 201(b)(2), the court may “judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b)(2). Rule 201(c)(2) states that the court “must take judicial notice if a ...


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