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Simpson v. Devore

United States District Court, D. Nevada

February 27, 2018

JASON K. SIMPSON, Plaintiffs,
v.
S. DEVORE, et al., Defendant(s).

          ORDER

         Presently before the court is defendants Thomas Faller, Daniel Hawkins, Brendan LeBlanc, Craig Lilienthal, Troy Radke, Lawrence Rinette, Timothy Schoening, Theodore Snodgrass, Linda Theobald, and Prokopios Ziros's motion to dismiss. (ECF No. 16). Plaintiff Jason Simpson filed a response (ECF No. 23), to which defendants replied (ECF No. 27).

         Also before the court is plaintiff's motion for judgment on the pleadings. (ECF No. 24). Defendants filed a response. (ECF No. 30). Plaintiff has not replied, and the time for doing so has since passed.

         Also before the court is plaintiff's motion for summary judgment. (ECF No. 25). Defendants filed a response, (ECF No. 31), to which plaintiff replied (ECF No. 45).

         Also before the court is plaintiff's motion to extend time to respond to defendants' motion to dismiss. (ECF No. 26). Defendants filed a response. (ECF No. 28). Plaintiff has not filed a reply, and the time for doing so has since passed.

         Also before the court is plaintiff's motion to amend his complaint. (ECF No. 46). Defendants filed a response, (ECF No. 47), to which plaintiff replied (ECF No. 52).

         Also before the court is plaintiff's motion “asking the court to put a hold on anything asked of plaintiff by defendants until counsel can be appointed.” (ECF No. 55). Defendants filed a response. (ECF No. 60). Plaintiff has not filed a reply, and the time for doing so has since passed.

         Also before the court is plaintiff's motion “requesting a summary of everything filed in the matter be sent to plaintiff.” (ECF No. 58). Defendants filed a response. (ECF No. 63). Plaintiff has not filed a reply, and the time for doing so has since passed.

         Also before the court is plaintiff's motion “requesting the court to provide plaintiff with an expert and rebuttal expert or fees to hire one.” (ECF No. 59). Defendants filed a response. (ECF No. 62). Plaintiff has not filed a reply, and the time for doing so has since passed.

         Also before the court is plaintiff's motion “to remove S. Devore's name from this litigation since he is not a defendant.” (ECF No. 65). Defendants have not filed a response, and the time for doing so has since passed.

         I. Background

         In the instant case, plaintiff seeks to hold defendant police officers liable for conduct related to a May 25, 2016 arrest of plaintiff. The following factual recitation comes from plaintiff's complaint.

         On May 25, 2016, plaintiff and his girlfriend visited Sun Coast Casino. Id. That day, plaintiff was driving a Mercedes that he did not own.[1] Id. While attempting to leave Sun Coast, unmarked vehicles attempted to surround the car driven by plaintiff. Id. When plaintiff attempted to change directions, one of the vehicles collided with the car driven by plaintiff. Id. The other vehicles immediately surrounded the car. Id. The unmarked vehicles were police vehicles. Id.

         One of the defendants[2] shattered the windows of the Mercedes with the butt end of a shotgun and pulled plaintiff's girlfriend through the window by grabbing onto her head. Id. Defendant Ziros then pulled plaintiff through a shattered window, with shards of glass cutting into plaintiff's body as Ziros removed him from the car. Id. Plaintiff was thrown to the ground on his stomach and handcuffed. Id. Multiple defendants proceeded to punch and kick plaintiff's groin, ribs, thighs, face, and the back of his head. Id. Defendant Theobold yelled “camera, ” at which point defendants stopped punching and kicking plaintiff. Id.

         Defendant Snodgrass was responsible for impounding the vehicle. Id. Snodgrass left a file containing an application for a search warrant and corresponding affidavit in the back of the vehicle. The documents contained plaintiff's personal information, including his social security number, date of birth, and details of an ongoing criminal case. Id. When the vehicle was returned to its owner, the owner “[r]ead [the file] and put a contract on [plaintiff's] life.” Id.

         Plaintiff filed the instant complaint on December 22, 2016. (ECF Nos. 1, 4). The complaint contains three causes of action: (1) a cruel and unusual punishment claim under the Eighth Amendment, (2) a “false testimony due process and or right to privacy” claim under the Fourth Amendment; and (3) an unlawful use of force claim under the Fourth Amendment. (ECF No. 4).

         II. Legal Standard

         a. Failure to state a claim

         A court may dismiss a 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); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, 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.” Iqbal, 556 U.S. 662, 678 (citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

         Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. 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. (internal quotation marks omitted). 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 ...


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