United States District Court, D. Nevada
PHILLIP E. SMITH, Plaintiffs,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.
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).
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.
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.
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.
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.
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
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.
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.
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.
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 ...