United States District Court, D. Nevada
C. JONES United States District Judge.
case arises out of an altercation over a vehicle parked on a
public plaza. Pending before the Court is a motion to
FACTS AND PROCEDURAL HISTORY
October 26, 2017, Plaintiff Johnny Lawrence parked his car in
front of the “BELIEVE” sign on the public plaza
in downtown Reno, Nevada in order to photograph it there.
(See Compl. 3, ECF No. 1). Plaintiff is a disabled
veteran and argues he is therefore permitted to park his
vehicle anywhere, despite the “posted permit parking
only” sign at the entrance to the plaza.
(Id.). Defendant Officers Castro, Meadows,
Christensen, and Wamre approached Plaintiff, cited him, and
told him he had five minutes to leave. (Id.).
Plaintiff told Officer Castro he had to air up the suspension
in his car and moved to the back of his car to do so, when
Officer Castro “shoved [him] into the back of my
has sued Officer Castro in this Court under 42 U.S.C. §
1983 for excessive force. He has sued the other officers at
the scene for failure to protect him, and he has sued Chief
Jason Soto for failure to train the other Defendants.
Defendants have moved to dismiss for failure to state a
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss
under Rule 12(b)(6) tests the complaint's sufficiency,
see N. Star Int'l v. Ariz. Corp. Comm'n, 720
F.2d 578, 581 (9th Cir. 1983), and dismissal is appropriate
only when the complaint does not give the defendant fair
notice of a legally cognizable claim and the grounds on which
it rests. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).
treats factual allegations as true and construes them in the
light most favorable to the plaintiff, NL Indus., Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), but does not
accept as true “legal conclusions . . . cast in the
form of factual allegations.” Paulsen v. CNF
Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). A plaintiff
must plead facts pertaining to his case making a violation
“plausible, ” not just “possible.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) (“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.”). That is, a plaintiff must not only specify
or imply a cognizable legal theory (Conley review),
he must also allege the facts of his case so that the court
can determine whether he has any basis for relief under the
legal theory he has specified or implied, assuming the facts
are as he alleges (Twombly-Iqbal review).
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) (citation omitted).
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). Also, under Federal Rule of
Evidence 201, a court may take judicial notice of
“matters of public record” if not “subject
to reasonable dispute.” United States v. Corinthian
Colls., 655 F.3d 984, 999 (9th Cir. 2011). Otherwise, if
the district court considers materials outside of the
pleadings, the motion to dismiss is converted into a motion
for summary judgment. See Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
state a claim under § 1983, a plaintiff must allege: (1)
that a right secured by the Constitution or laws of the
United States was violated; and (2) that the alleged
violation was committed by a person acting under color of
state law. See West v. Atkins, 487 U.S. 42, 48
(1988). The constitutional reasonableness of a seizure is
examined under a totality-of-the-circumstances:
Determining whether the force used to effect a particular
seizure is “reasonable” under the Fourth
Amendment requires a careful balancing of “‘the
nature and quality of the intrusion on the individual's
Fourth Amendment interests'” against the
countervailing governmental interests at stake. Our Fourth
Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with
it the right to use some degree of physical coercion or
threat thereof to effect it. Because “[t]he test of
reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application, ”
however, its proper application requires careful attention to
the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.
The “reasonableness” of a particular use of force
must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.
. . . With respect to a claim of excessive force, the same
standard of reasonableness at the moment applies: “Not
every push or shove, even if it may later seem unnecessary in
the peace of a judge's chambers, ” violates the
Fourth Amendment. The calculus of reasonableness must embody
allowance for the fact that police officers are often forced
to make split-second ...