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Beverly v. State, Clark County

United States District Court, D. Nevada

January 26, 2017

ARNOLD BEVERLY, Plaintiffs,
v.
STATE OF NEVADA CLARK COUNTY LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Defendants.

          ORDER

         Presently before the court is pro se plaintiff Arnold Beverly's motion for judgment on the pleadings. (ECF No. 26). Defendant Las Vegas Metropolitan Police Department (“LVMPD”) filed a response (ECF No. 32), to which plaintiff did not reply.

         Also before the court is LVMPD's motion for summary judgment. (ECF No. 28). Plaintiff has not responded, and the period to do so has since passed.

         I. Facts

         This is a civil rights action under 42 U.S.C. § 1983 alleging excessive force in violation of the 4th Amendment. (ECF No. 1).

         Plaintiff alleges that he was stopped by two officers on December 25, 2014, after he was observed jaywalking near the corner of Lamb and Owens Street. (ECF No. 1). As a result of the stop, he received ticket (#1-05286229). (ECF No. 1). Plaintiff alleges that while stopped, the officers commanded him to “do nothing” and subjected him to “multiple body searches while the Las Vegas Metropolitan Police inflicted extreme pain.” (ECF No. 1). Plaintiff claims that he was attacked and dominated such that he “yielded for fear of losing his life.” (ECF No. 1). He further claims that “[b]y design the Las Vegas Metropolitan Police Officers are trained to do their duties in a way that, only in compliance to the Las Vegas Metropolitan Police Officers commands can one avoid a trip to the morgue.” (ECF No. 1).

         Plaintiff then filed the instant action against LVMPD and does 1 through 99. (ECF No. 1). Plaintiff does not appear to know the names of the officers who stopped him. (ECF No. 1). Further, plaintiff does not expressly state the cause of action under which he is suing, but requests relief in the form of damages, declaratory judgment, and costs and expenses incurred. (ECF No. 1).

         On February 16, 2016, the court denied LVMPD's motion to dismiss as to plaintiff's § 1983 claim, but granted the motion as to plaintiff's Monell liability claim. (ECF No. 21). In that order, the court found that upon construing plaintiff's complaint liberally, the allegations were sufficient to state a claim for excessive force under § 1983. (ECF No. 21). Further, the court held that plaintiff should be given an opportunity through discovery to identify the unknown defendants because he was likely to discover the names of the two officers during discovery. (ECF No. 21).

         On April 12, 2016, the court entered a scheduling order setting June 13, 2016, as the deadline for motions to amend or add parties, and September 12, 2016, as the deadline for dispositive motions. (ECF No. 23). No motions to amend were filed.

         Plaintiff now moves for judgment on the pleadings. (ECF No. 26). LVMPD now moves for summary judgment based on plaintiff's failure to support his § 1983 claim, as well as to renew its request for dismissal as to the “doe” defendants. (ECF No. 28). The court will address each in turn.

         II. Legal Standard

         A. Judgment on the Pleadings

         “After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are “functionally identical” to motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).

         In reviewing a motion for judgment on the pleadings pursuant to Rule 12(c), the court “must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “[J]udgment on the pleadings is proper ‘when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law.'” Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007) (citation omitted). The allegations of the nonmoving party must be accepted as true while ...


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