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Simpson v. Devore

United States District Court, D. Nevada

March 20, 2019

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

          ORDER

         Presently before the court is defendants S. Devore[1], T. Faller, D. Hawkins, B. Leblanc, C. Lilienthal, T. Radke, L. Rinette, T. Schoening, and T. Snodgrass' (collectively, "defendants") motion for summary judgment. (ECF No. 81). Plaintiff Jason Simpson ("plaintiff) has not filed a response, and the time to do so has passed.

         Also before the court is defendants' amended motion for summary judgment. (ECF No. 87). Plaintiff filed a response (ECF No. 92), to which defendants replied (ECF No. 94). Plaintiff also filed an unauthorized surreply. (ECF No. 95).

         Also before the court is defendants' motion to strike plaintiffs surreply. (ECF No. 97). Plaintiff filed a response (ECF No. 98). Defendants have not filed a reply, and the time to do so has passed.

         Lastly before the court is defendants' motion for leave to file a supplement to their amended motion for summary judgment. (ECF No. 100). Plaintiff has not filed a response, and the time to do so has passed.

         I. Facts

         This pro se civil rights action under 42 U.S.C. § 1983 arises from an arrest that occurred in Las Vegas on May 25, 2016. (ECF No. 4). Plaintiff alleges that Las Vegas Metropolitan Police Department ("LVMPD") officers violated his Fourth Amendment right to be free from excessive force in executing his arrest. Id. Plaintiff further alleges that defendant Snodgrass violated his Fourth Amendment right to privacy when he allegedly left a search warrant, an affidavit, and the search warrant return in both vehicles Simpson drove the night of his arrest. Id.

         Defendants have provided video evidence that informs the court about plaintiffs arrest.

         a. Events leading up to arrest

         On May 18, 2016, LVMPD detectives watched a Green BMW run a red light at a high rate of speed. (ECF No. 87-1 at 65-76). The detectives attempted to locate the vehicle, and eventually found it at a Money Tree parking lot. Id. The detectives activated their lights as they approached the vehicle to make a stop. Id. As the detectives approached, a single shot was fired through the back window of the BMW, after which the vehicle drove over a curb and sped away. Id.

         The detectives later learned (and plaintiff admits) that plaintiff was the driver of the BMW and that he shot through the back window of the BMW in the direction of the detectives in an attempt to flee. (ECF No. 87-6 at 9). Accordingly, the detectives sought a warrant for plaintiffs arrest on May 23, 2016. (ECF No. 87-1 at 65-76).

         b. The arrest incident

         LVMPD assigned plaintiffs arrest to the Major Violator's Unit because of plaintiff s prior felonies and the severity of the charged crimes, which included, inter alia, attempted murder on a public officer, possession of a firearm by a prohibited person, resisting a public officer with a firearm, and "offense involving a stolen vehicle." Id.

         Plaintiff alleges that on May 25, 2016, he and his girlfriend, Sarah Crebassa ("Crebassa") had been driving around Las Vegas in a white Mercedes owned by a third individual. Id. at 7. Plaintiff alleges that later that day, the Mercedes was "acting weird," so he met another female at Green Valley Ranch to exchange the Mercedes for her silver BMW. Id.

         Plaintiff alleges that, throughout the day, he noticed a lot of "weird" vehicles flashing lights at him, and suspected that law enforcement was following him. Id. at 7. However, plaintiff admits he had been using methamphetamine that day, and wondered if he was being paranoid because of the methamphetamine or if strange things were really happening. Id. at 17.

         Plaintiff and Crebassa ended up going to the parking garage at the Suncoast Hotel and Casino. Id. at 9. The detectives assigned to plaintiffs arrest had been surveilling him throughout the day and decided that the parking garage would be a best place to execute the arrest. (ECF No. 87-2 at 71).

         The detectives were in several vehicles and blocked the exits of the parking garage so that plaintiff could not escape. Id. At one point, the detectives were able to "pin" plaintiff s BMW by parking multiple vehicles around it, closing off plaintiff s escape path ("jamming method"). Id. The vehicles were positioned such that the BMW's doors could not be opened. Id. Plaintiff put the car in reverse in an attempt to flee, but one of the detectives' vehicles drove towards him fast, trapping him. (ECF No. 87-1 at 9). The parties dispute which party caused a collision between the BMW and the vehicle that defendant Hawkins was driving. Id. Nevertheless, a collision occurred, and plaintiff remained immobilized. Id.

         When plaintiff realized he was trapped, he put the car in park, turned off the engine, and put his hands in the air. Id. at 10. Defendant Hawkins got out of his vehicle, ran to the passenger's side of the vehicle with a baseball bat, and broke the window to get access to Crebassa in the back seat. (ECF No. 87-2 at 75). After a verbal exchange with plaintiff, defendant Ziros broke the driver's side window so the detectives could extract plaintiff from the BMW. Id. at 72.

         The parties dispute what happened next, but the video evidence lends clarity to the situation. The following facts are verifiable based on the video evidence as well as the undisputed portions of the accounts from the parties.

         Defendants Hawkins, Ziros, and LeBlanc pulled plaintiff from the vehicle and immediately took him to the ground on his stomach. (ECF No. 87-7, exh. AA); (ECF No. 87-1 at 13). Once plaintiff was lying on the ground on his stomach, defendants can be seen attempting to pull plaintiffs arms out from underneath him. (ECF No. 87-7, exh. AA). As plaintiff continued to struggle, defendant Faller admits that he used his foot to pin plaintiffs thigh to the ground to keep him from kicking. (ECF No. 87 at 14). Defendant Radke admits he used a single open-handed strike to gain plaintiffs compliance ...


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