Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

February 14, 2017

PHILLIP E. SMITH, Plaintiffs,


         Presently before the court is defendant Officer Seymore's (“Seymore”) motion to dismiss. (ECF No. 15). The plaintiff, Phillip E. Smith (“Smith”), filed a response (ECF No. 21), to which Seymore replied (ECF No. 22). Sergeant Warburton (“Warburton”) joined Seymore's motion to dismiss and reply in support of the same. (ECF No. 35).

         I. Facts

         On May 18, 2010, Smith was allegedly involved in “a head on collision with a commercial tour bus.” (ECF No. 6 at 4). Smith alleges that the accident caused multiple injuries to his head, chest, and back. Id.

         After the accident, police arrived at the scene. Id. Smith then allegedly told Seymore about his injuries. Id. Smith asserts that after asking for a doctor several times due to pain of his injuries, Seymore told Smith to “shut up” and threatened him. Id.

         Soon after, Warburton approached the patrol car where Smith was being held. Id. When Smith saw Warburton, he allegedly asked for a doctor again. Id. Smith claims Warburton ignored him and did not assist him. Id.

         Smith brings suit under 42 U.S.C. § 1983 in his first amended complaint, alleging that the officers engaged in cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Id. Smith filed his amended complaint on December 4, 2015-over five years after Smith admittedly first learned of his injuries. Id.

         Smith asks the court to deny Seymore and Warburton's motion to dismiss and further moves this court to equitably toll the statute of limitations. (ECF No. 21). Smith argues that this court should toll the statute of limitations because he did not have adequate access to a law library until four years after his incarceration and because he feared that Seymore and Warburton would retaliate against him if he did file a complaint. Id.

         II. Legal Standard

         The court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although rule 8 does not require detailed factual allegations, it does require more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, a formulaic recitation of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (citation omitted). Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 678-79.

         To survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. When a complaint pleads facts that are merely consistent with a defendant's liability, and shows only a mere possibility of entitlement, the complaint does not meet the requirements to show plausibility of entitlement to relief. Id.

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering a motion to dismiss. Id. First, the court must accept as true all of the allegations contained in a complaint. However, this requirement is inapplicable to legal conclusions. Id. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged - but not shown - that the pleader is entitled to relief.” Id. at 679. When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

         The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court held:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.