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Roberts v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

September 25, 2019

JOSHUA ROBERTS, Plaintiff
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants

          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]

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Defendants 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[1] 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.

         I 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.

         Roberts 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.

         The 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.

         I deny 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 one.

         I. BACKGROUND

         On 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.

         Detective 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.

         The 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.

         According to Roberts, he did not swerve his car to strike Jackson’s car. ECF No. 17 at 13.[2] 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.

         The 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.

         Jackson 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.

         Meanwhile, 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.

         According 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 15.

         After 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. ...


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