United States District Court, D. Nevada
ORDER (1) GRANTING IN PART THE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT, (2) DENYING THE
DEFENDANTS’ MOTION TO STRIKE, AND (3) DENYING THE
PLAINTIFF’S MOTION FOR LEAVE TO FILE SUR-REPLY [ECF
NOS. 39, 48, 59]
P. GORDON, UNITED STATES DISTRICT JUDGE
Joshua Roberts alleges that during an arrest, defendant
police officer Steve Devore kicked him in the face and ribs.
He also contends the other defendant officers failed to
intervene and then conspired to cover up Devore’s use
of excessive force by falsely claiming Roberts came by his
injuries through other means and by falsely charging him with
the crime of battery with use of a deadly weapon. He thus
asserts a claim under 42 U.S.C. § 1983 for excessive
force against the three arresting officers, conspiracy
against all defendants, and assault and battery against the
three arresting officers.
Las Vegas Metropolitan Police Department (LVMPD), Sheriff Joe
Lombardo, Andrew O’Grady, Brian Jackson, Brendon
LeBlanc, and C. Lilienthal move for summary judgment. First,
they argue no one but Devore is alleged to have used
excessive force by kicking Roberts in the face and ribs, so
they did not personally participate in the violation alleged
in count one. Alternatively, Jackson and LeBlanc contend that
any force they used during the arrest was reasonable and, in
any event, they are entitled to qualified immunity. As to the
conspiracy claim, the defendants argue there is no evidence
of an agreement or of an intent to harm Roberts. Finally, as
to the assault and battery claim, they again assert there is
no allegation that they assaulted or battered Roberts because
only Devore is alleged to have kicked Roberts. Alternatively,
they argue the amount of force they used was reasonable and
they are entitled to discretionary immunity under Nevada law.
granted Roberts’ motion to extend his response deadline
until March 18, 2019. ECF No. 42. Roberts then filed a
“supplement” to his motion to extend time in
which he requested additional time. ECF No. 47. The
defendants move to strike the supplement, arguing that
Roberts should have filed another motion to extend time, not
a supplement to his original motion. ECF No. 48.
filed his response to the summary judgment motion on March
29, 2019. ECF No. 54. He argues that his version of events
raises a genuine dispute, as do his injuries, which is not
consistent with the defendants’ version. In support, he
attaches a letter from a doctor at the prison where he is
currently housed, who opines that the number and location of
Roberts’ injuries is inconsistent with being hit by a
car door or falling down. Alternatively, Roberts requests I
defer ruling on the motion because Devore has recently been
served and appeared in the case, and discovery needs to be
reopened as to him. Roberts contends Devore may contradict
the other defendants’ version of events.
defendants reply by noting that Roberts’ response was
untimely and by challenging the admissibility of the
doctor’s letter. Roberts then filed a motion for leave
to file a sur-reply to address both the timeliness of his
response and why he believes the doctor’s letter is
admissible. The LVMPD defendants oppose the motion for leave
to file a sur-reply.
the motion to strike because the defendants identify no
prejudice from either the supplement or the late-filed
opposition and cases should be decided on the merits where
possible. I deny as moot the motion for leave to file a
sur-reply because nothing in the sur-reply changes my
analysis in this order. I grant in part the defendants’
motion for summary judgment. I grant the motion as to
defendants Lilienthal, O’Grady, Lombardo, and LVMPD in
count two and as to defendants LeBlanc and Jackson in count
three. I deny the motion as to LeBlanc and Jackson in count
April 20, 2016, members of the LVMPD Major
Violators/Narcotics Bureau went to an address where they
suspected Roberts might be staying. ECF No. 39 at 21, 82.
Roberts was wanted on an active, no-bail warrant for felony
grand larceny of a vehicle. Id. at 21. Detectives
saw Roberts leave the house and get into a white car.
Id. at 41. They tried to stop Roberts at the
residence, but he drove away. Id.
Jackson had parked his vehicle at a nearby intersection to
set up a perimeter in case Roberts fled. Id. at 21.
He heard broadcast over the radio that Roberts was in a white
car. Id. Soon thereafter, Jackson saw a white car
headed his way at a “high rate of speed.”
Id. at 21-22. Jackson positioned his car so that
there was an opening for Roberts to escape by going in front
of Jackson’s car. Id. at 22.
parties dispute what happened next. Jackson stated that
Roberts began veering toward the front driver’s side of
his car, so he started to back up to give Roberts more room
to pass in front of him. Id. According to Jackson,
Roberts swerved towards the rear of his car and
“intentionally struck the driver’s side rear
portion” of Jackson’s car. Id. LeBlanc
and Devore likewise stated that Roberts drove “directly
at Detective Jackson who was attempting to get out of
Robert’s [sic] way as Roberts intentionally struck the
rear driver side of Detective Jackson[’s]
vehicle.” Id. at 33, 86. Jackson broadcast to
the other officers that Roberts had struck his car and he
told them what direction Roberts went. Id. at 22.
to Roberts, he did not swerve his car to strike
Jackson’s car. ECF No. 17 at 13. Rather, he
contends that Jackson struck his car and then falsely
communicated to the other officers that he had struck
Jackson’s car. Id. at 14.
parties agree that Roberts then drove over the sidewalk and
back into the street. ECF No. 39 at 22. Devore was following
him. Id. at 41, 87. When Roberts drove onto the
sidewalk, he hit the curb, causing the passenger side axel to
break. Id. at 41. As a result, Roberts’
vehicle came to a sudden stop and Devore could not stop in
time, so he crashed into the back of Roberts’ car.
Id. at 41, 87.
and LeBlanc then arrived at the location where Roberts was
stopped. The parties dispute what happened at this point.
According to Jackson, Roberts exited the car, and as he did,
he got “bounced between his door and his
vehicle.” Id. at 22. Jackson contends he saw
Roberts attempt to flee on foot and Roberts fell down
“face first.” Id. He also saw the
passenger in the car, later identified as Sarah Marsden, flee
on foot. Id. Lilienthal pursued Marsden and detained
her. Id. at 26.
Jackson saw Devore attempting to take Roberts into custody.
Id. at 22. According to Jackson, Roberts
“continued to resist and I observed Roberts curling his
arms to the front of his chest.” Id. Jackson
thus grabbed Roberts’ right wrist, placed his shin
along the small of Roberts’ back, and placed a handcuff
on Roberts’ right wrist. Id. LeBlanc stated
that when he arrived on the scene, he saw Roberts lying face
down while Devore attempted to take Roberts into custody.
Id. He also saw Jackson arrive to assist Devore.
Id. LeBlanc came over to help and heard Devore
giving commands to Roberts to give the officers his hands.
Id. According to LeBlanc, Roberts did not comply, so
Jackson grabbed Roberts’ right hand. Id.
LeBlanc then grabbed Roberts’ left wrist, put him in a
handcuffing wristlock, and placed his knee on Roberts’
right shoulder blade. Id. Jackson was able to get a
handcuff on Roberts’ right hand and Devore placed his
handcuffs on Roberts’ left hand, at which point they
double handcuffed him and placed him in custody. Id.
to Roberts, Devore was the first person who approached him
after he got out of the car, and Devore kicked him several
times in the face and ribs. ECF No. 17 at 4, 10-11. Roberts
stated that he was on the ground, unarmed, and not resisting
at the time Devore was kicking him. Id. at 10-11.
Roberts stated that while Devore was kicking him, he heard
“the voices of others, believed to be other members of
the LVMPD . . . who did not intervene to stop Devore.”
Id. at 11. Roberts admits he was curling his arms in
front of his chest, but he contends he was doing so to
protect himself from Devore’s kicks. Id. at
Roberts was handcuffed, the officers called for medical
assistance. ECF No. 39 at 33. Roberts was transported to the
hospital for treatment. Id. LeBlanc rode in the
ambulance with Roberts. Id. at 41. According to
LeBlanc, Roberts stated that he was sorry and that he ran
because he had a warrant for his arrest. Id. ...