United States District Court, D. Nevada
M NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE.
before the Court is the Motion to Dismiss Plaintiff's
Third Amended Complaint, (ECF No. 85), filed by Defendants
City of Henderson (“Henderson”) and Detective
Perdue (collectively, “Henderson Defendants”).
Plaintiff Harvester Harris (“Plaintiff”) filed a
Response, (ECF No. 86), and Henderson Defendants filed a
Reply, (ECF No. 87). For the following reasons, the Motion to
Dismiss is GRANTED.
case arises out of a traffic stop involving Plaintiff and
Defendants Officer Scott Nielson (“Officer
Nielson”) and Detective Perdue (collectively
“Officers”). Specifically, Plaintiff was working
as a cab driver on March 8, 2013, when he was stopped by an
unmarked vehicle driven by Officer Nielson and Detective
Perdue. (See Third Am. Compl. (“TAC”)
¶ 22, ECF No. 82). Plaintiff alleges that the Officers
seized him as both “were on duty and in plain clothes
(jeans and dark tops) void of any police identification
marking.” (Id. ¶ 18). Plaintiff alleges
that Officer Nielson then “took out his handcuffs,
pulled and simultaneously twisted [Plaintiff's] right
middle finger, and put him in handcuffs.” (Id.
¶ 26). Plaintiff alleges he was seized for “16
minutes, 8 seconds.” (Id. ¶ 95).
Additionally, no traffic citation was issued. (Id.
¶ 85). Plaintiff alleges that “[a]s a result of
Defendants' use of force, and choice not to prevent the
use of excessive force, Plaintiff has suffered permanent
injuries to his right middle finger.” (Id.
¶ 35). Furthermore, Plaintiff asserts he was
unreasonably seized by Officer Nielson and Detective Perdue.
(Id. ¶¶ 36).
this incident, Plaintiff made Freedom of Information Act
(“FOIA”) requests to Henderson Defendants,
“however each department chose not to comply.”
(Id. ¶ 37). Additionally, there is no evidence
as to whether the Henderson Police Department conducted an
investigation into Detective Perdue. (Id. ¶
filed the instant action on February 25, 2015. (See
Compl., ECF No. 1). On July 31, 2015, the parties filed a
Stipulation to Amend Complaint (ECF No. 25), and on August
10, 2015, Plaintiff filed his First Amended Complaint
(“FAC”) (ECF No. 28). On June 20, 2016,
Plaintiff's FAC was dismissed without prejudice and
Plaintiff was granted leave to file a second amended
complaint, which was filed on July 5, 2016. (Dismissal Order,
ECF No. 50); (Sec. Am. Compl., ECF No. 53).
January 27, 2017, the Court granted Motions to Dismiss that
terminated Defendants Doug Gillespie and Chief Patrick Moers,
(see Order, ECF No. 78). The Order also granted
Plaintiff leave to amend and file a third amended complaint
“to cure the jurisdictional deficiencies identified in
this Order for [Plaintiff's] fourth, fifth, and sixth
causes of action regarding his state law claims against
Detective Perdue.” (Order 10:8-9).
filed his Third Amended Complaint (“TAC”) on
February 17, 2017. (TAC, ECF No. 82). The TAC alleges the
following causes of action: (1) 42 U.S.C. § 1983
violations against Defendant Officer Nielson; (2)
Monell claims against Defendant Las Vegas
Metropolitan Police Department (“LVMPD”); (4)
false arrest and false imprisonment against Henderson,
Officer Perdue, and Officer Nielson; (5) intentional
infliction of emotional distress against Henderson, Officer
Perdue, and Officer Nielson; and (6) negligence against
Henderson, Officer Perdue, and Officer Nielson (TAC
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as a factual allegation are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id.
survive a motion to dismiss, a complaint must contain
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) (quoting
Twombly, 550 U.S. at 555). “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. This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990). “However,
material which is properly submitted as part of the complaint
may be considered.” Id. 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). On a motion to dismiss, a court may also take
judicial notice of “matters of public record.”
Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282
(9th Cir. 1986). Otherwise, if a court considers materials
outside of the pleadings, the motion to dismiss is converted
into a motion for summary judgment. Fed.R.Civ.P. 12(d).
court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Sys., Inc., 957
F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the
court should “freely” give leave to amend
“when justice so requires, ” and in the absence
of a reason such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).