Searching over 5,500,000 cases.


searching
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.

Barber v. Williams

United States District Court, D. Nevada

May 9, 2017

LARRY BARBER, Plaintiff,
v.
OFFICER STEVE WILLIAMS, et al., Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge.

         Pending before the Court is the Motion for Judgment on the Pleadings, (ECF No. 117), filed by Defendant Officer Steve Williams (“Defendant”). Pro se Plaintiff Larry Barber (“Plaintiff”)[1] filed a Response, (ECF No. 123), and Defendant filed a Reply, (ECF No. 124). Plaintiff also filed a Surreply, (ECF No. 125). For the reasons discussed below, the Court GRANTS Defendant's Motion.[2]

         I. BACKGROUND

         This case arises out of Defendant's arrest of Plaintiff. Specifically, on January 31, 2012, Plaintiff jay-walked across a street and entered the lobby of a hotel. (Fourth Am. Compl. at 3- 4, ECF No. 103). Plaintiff alleges that while on patrol, Defendant and his partner witnessed Plaintiff jay-walk and followed him into the lobby to speak to him. (Id. at 4).

         When Defendant asked to speak to Plaintiff, Plaintiff asserts that his back was turned, and Plaintiff turned around to face Defendant with his hand in his pocket. (Id. at 4-5). Defendant asked Plaintiff to step out of the lobby, to which Plaintiff responded, “For what?” (Id. at 5). Plaintiff alleges that Defendant then ordered Plaintiff to remove his hand from his pocket and exit the hotel. (Id.). After further argument, Plaintiff contends that he went to remove his hand from his pocket, but first informed Defendant that there was a pocketknife in his pocket. (Id. at 6). Plaintiff alleges that a struggle occurred between Plaintiff and Defendant with the pocketknife, and Defendant eventually shot Plaintiff multiple times. (Id. at 7).

         Plaintiff was charged with the exchange for attempted murder with use of a deadly weapon, resisting a public officer, carrying a concealed firearm or other deadly weapon, and assault with a deadly weapon. (Ex. D to Mot. for J. on the Pleadings (“MJP”), ECF No. 117). Ultimately, Plaintiff accepted a guilty plea agreement for the charges of resisting a public officer and assault with a deadly weapon. (Ex. H to MJP).

         In the instant action, Plaintiff asserts a § 1983 claim against Defendant for violating Plaintiff's Fourth Amendment right “to be free from physically intrusive governmental conduct, specifically, the use of excessive force in the seizure of his person.” (Fourth Am. Compl. at 4). Plaintiff seeks, inter alia, “compensatory damages in the amount of ten million dollars, ” “punitive damages in the amount of ten million dollars, ” and “declaratory judgment that [D]efendant used ‘excessive force.'” (Id. at 14).

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(c) provides that “[a]fter 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). “Judgment on the pleadings is properly granted when, accepting all factual allegations in the complaint as true, there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012). Accordingly, “[a]nalysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both rules, a court must determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.” Id.

         In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Fed. R. Civ. P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

         III. DISCUSSION

         Plaintiff's Fourth Amended Complaint, (ECF No. 103), alleges a single violation of Plaintiff's Fourth Amendment Right “to be free from physically intrusive governmental conduct, specifically, the use of excessive force in the seizure of his person.” (Fourth Am. Compl. at 4). Defendant seeks judgment on the pleadings “because Plaintiff's action is barred by Heck v. Humphrey.” (MJP 1:19-20, ECF No. 117).

         Pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), a § 1983 action that challenges the validity of a plaintiff's criminal conviction or confinement is not cognizable unless the plaintiff can prove that his or her sentence has been reversed, expunged, declared invalid, or called into question by the issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-87. “Heck, in other words, says that if a criminal conviction stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.” Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. ...


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.