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Harris v. City of Henderson

United States District Court, D. Nevada

October 10, 2017

HARVESTER HARRIS, Plaintiff,
v.
CITY OF HENDERSON, a political subdivision of the State of Nevada; LAS VEGAS METROPOLITAN POLICE DEPARTMENT, a political subdivision of the State of Nevada; SHERIFF DOUG GILLESPIE, individually; CHIEF PATRICK MOERS, individually; OFFICER SCOTT NIELSON, P#4408, individually; DETECTIVE PERDUE, individually; DOE OFFICERS III-X; and JOHN DOES I-X, inclusive, Defendants.

          ORDER

          GLORIA M NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. BACKGROUND

         This 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).

         Following 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. ¶ 107).

         Plaintiff 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).

         On 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).

         Plaintiff 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 ¶¶ 108-62).

         II. LEGAL STANDARD

         Dismissal 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.

         “To 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.” Id.

         “Generally, 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).

         If the 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).

         III. ...


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