United States District Court, D. Nevada
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.
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.
a civil rights action under 42 U.S.C. § 1983 alleging
excessive force in violation of the 4th Amendment. (ECF No.
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).
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).
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).
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
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
Judgment on the Pleadings
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).
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 ...