Smith v. Las Vegas Metro Police Department et al

Filing 43

ORDER that 15 Motion to Dismiss is GRANTED without prejudice. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 2/14/17. (Copies have been distributed pursuant to the NEF - MMM)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 PHILLIP E. SMITH, 8 Plaintiff(s), 9 10 11 Case No. 2:15-CV-1011 JCM (PAL) ORDER v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant(s). 12 13 14 Presently before the court is defendant Officer Seymore’s (“Seymore”) motion to dismiss. 15 (ECF No. 15). The plaintiff, Phillip E. Smith (“Smith”), filed a response (ECF No. 21), to which 16 Seymore replied (ECF No. 22). Sergeant Warburton (“Warburton”) joined Seymore’s motion to 17 dismiss and reply in support of the same. (ECF No. 35). 18 I. Facts 19 On May 18, 2010, Smith was allegedly involved in “a head on collision with a commercial 20 tour bus.” (ECF No. 6 at 4). Smith alleges that the accident caused multiple injuries to his head, 21 chest, and back. Id. 22 After the accident, police arrived at the scene. Id. Smith then allegedly told Seymore about 23 his injuries. Id. Smith asserts that after asking for a doctor several times due to pain of his injuries, 24 Seymore told Smith to “shut up” and threatened him. Id. 25 Soon after, Warburton approached the patrol car where Smith was being held. Id. When 26 Smith saw Warburton, he allegedly asked for a doctor again. Id. Smith claims Warburton ignored 27 him and did not assist him. Id. 28 James C. Mahan U.S. District Judge 1 Smith brings suit under 42 U.S.C. § 1983 in his first amended complaint, alleging that the 2 officers engaged in cruel and unusual punishment under the Eighth Amendment of the United 3 States Constitution. Id. Smith filed his amended complaint on December 4, 2015—over five years 4 after Smith admittedly first learned of his injuries. Id. 5 Smith asks the court to deny Seymore and Warburton’s motion to dismiss and further 6 moves this court to equitably toll the statute of limitations. (ECF No. 21). Smith argues that this 7 court should toll the statute of limitations because he did not have adequate access to a law library 8 until four years after his incarceration and because he feared that Seymore and Warburton would 9 retaliate against him if he did file a complaint. Id. 10 II. Legal Standard 11 The court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief 12 can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and 13 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 14 Although rule 8 does not require detailed factual allegations, it does require more than labels and 15 conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, a formulaic 16 recitation of the elements of a cause of action will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 17 677 (2009) (citation omitted). Rule 8 does not unlock the doors of discovery for a plaintiff armed 18 with nothing more than conclusions. Id. at 678–79. 19 To survive a motion to dismiss, a complaint must contain sufficient factual matter to “state 20 a claim to relief that is plausible on its face.” Id. A claim has facial plausibility when the plaintiff 21 pleads factual content that allows the court to draw the reasonable inference that the defendant is 22 liable for the misconduct alleged. Id. When a complaint pleads facts that are merely consistent 23 with a defendant’s liability, and shows only a mere possibility of entitlement, the complaint does 24 not meet the requirements to show plausibility of entitlement to relief. Id. 25 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 26 when considering a motion to dismiss. Id. First, the court must accept as true all of the allegations 27 contained in a complaint. However, this requirement is inapplicable to legal conclusions. Id. 28 Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. James C. Mahan U.S. District Judge -2- 1 at 678. Where the complaint does not permit the court to infer more than the mere possibility of 2 misconduct, the complaint has “alleged – but not shown – that the pleader is entitled to relief.” Id. 3 at 679. When the allegations in a complaint have not crossed the line from conceivable to 4 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, 5 6 1216 (9th Cir. 2011). The Starr court held: 7 First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. 8 9 10 11 12 13 Id. III. Discussion a. Statute of limitations 14 Statute of limitations exist to protect the interests of defendants who have not been notified 15 within a reasonable period of time from the start of the initial claim. U.S. v. Kubrick, 444 U.S. 16 111, 117 (1979). Statutes of limitations protect defendants from prejudice by defending against 17 claims in which the evidence has dissipated with time. Id. 18 With regard to 42 U.S.C. § 1983, the forum state’s law governs the duration of the statute 19 of limitations period for personal injury claims. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 20 2004). Under Nevada law, the statute of limitations for personal injury claims vary depending on 21 the type of claim. See Nev. Rev. Stat. 11.190. In a situation like this one, where a state has multiple 22 statute of limitation periods for personal injuries, the court will apply the residual limitation period. 23 Perez v. Seevers, 869 F.3d 425, 426 (9th Cir. 1989). 24 In Nevada, the residual statute of limitations for personal injury is two years under NRS 25 11.190(4)(e). Id. Thus, that period governs here. Further, the period of limitations begins to run 26 under § 1983 when the plaintiff “knows or has reason to know” of the injury upon which the action 27 is based. Cabarea v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998). 28 James C. Mahan U.S. District Judge -3- 1 Here, it is uncontested that Smith filed his lawsuit after the statute of limitations had run. 2 See (ECF No. 21). Smith knew of his injury on May 18, 2010, when he allegedly asked the officers 3 for medical help, and the officers allegedly failed to comply. (ECF No. 6). Accordingly, the 4 limitation period began on May 18, 2010. Five years later, well after the two-year statute of 5 limitation period had elapsed, Smith filed the present complaint. Id. Therefore, the question of 6 equitable tolling is the dispositive issue for this motion. 7 b. Equitable tolling of the statute of limitations 8 While the statute of limitations period ensures that defendant rights are protected, courts 9 have looked to equitable relief to escape the rigidity of the statute of limitations for certain 10 plaintiffs. See Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946). Thus, when plaintiffs show that 11 there is an excusable delay such as the plaintiff not having “known of the existence of a possible 12 claim within the limitations period,” then equitable tolling acts as a mechanism for the plaintiff to 13 seek relief from the court. Lukovsky v. City and Cnty. of San Francisco, 535 F.3d 1044, 1051 (9th 14 Cir. 2008). 15 Equitable tolling standards are determined by the law of the forum state. Jones, 393 F.3d 16 at 927. In Nevada, courts look to the factors established in Copeland v. Desert Inn Hotel when 17 evaluating whether to toll the statute of limitations. 673 P.2d 490, 492 (Nev. 1983); see also 18 Wisenbaker v. Farwell, 341 F. Supp. 2d 1160, 1164–65 (D. Nev. 2004) (utilizing the Copeland 19 factors to determine whether a period of limitations should be tolled on a prisoner’s claim). The 20 Copeland factors include: (1) “the diligence of the claimant”; (2) “claimant’s knowledge of the 21 relevant facts”; (3) claimant’s reliance on authoritative statements of administrative agencies that 22 were misleading regarding the claimant’s rights; (4) false assurances from the defendant to the 23 plaintiff; (5) actual prejudice to the defendant as a result of allowing the claim after the statute of 24 limitations has run; and (6) “any other equitable considerations appropriate in the particular case.” 25 Copeland, 673 P.2d at 492; see also Nev. Rev. Stat. 11.250. 26 Here, while the plaintiff does not explicitly allege the Copeland factors, the court will look 27 to the facts alleged to determine if these facts, taken as true, allow the court to equitably toll the 28 statute of limitations. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (acknowledging that the James C. Mahan U.S. District Judge -4- 1 facts presented in a handwritten prisoner’s complaint must generally be accepted no matter how 2 poorly pleaded). In this case, the facts weigh strongly against tolling the limitation period. 3 Smith shows that he knew his rights were violated since he was first taken into custody in 4 2010. (ECF No. 6). Smith also indicates—based on his attempts to use the law library and his 5 alleged fear of retribution by the officers if he attempted to file a claim—that he knew within the 6 limitation period that he had a claim under § 1983. (ECF No. 21). Therefore, Smith knew the 7 relevant facts enabling the claim since he was first taken into custody. 8 Based on the alleged facts, Smith did not detrimentally rely on any administrative agency 9 statements. Smith alleges no facts that he ever requested medical attention once he arrived in the 10 prison nor that he asked the prison officials for help filing a legal case under § 1982. See (ECF 11 No. 6). The above facts suggest that Smith purposefully did not discuss filing a claim or his injuries 12 with anyone, due to an unsupported fear of retribution by Seymore and Warburton. (ECF No. 21). 13 As a result of Smith’s failure to discuss his injuries or his potential legal claim with anyone 14 and Smith’s failure to file a legal claim, both Seymore and Warburton have been prejudiced. (ECF 15 No. 22). It does not appear that the officers or the Las Vegas Metropolitan Police Department 16 investigated the alleged incident or preserved any evidence. Id. This failure to file a claim in the 17 statute of limitation period therefore prejudices defendants and also creates difficulties for the court 18 in determining the truth of what occurred on May 18, 2010—nearly seven years after the alleged 19 incident and five years after the statute of limitations had run. 20 Smith states that he would have diligently pursued his claim but for inadequate access to 21 the law library in the prison and fear of retribution by Seymore and Warburton. (ECF No. 21). 22 While access to a law library or alternative methods of providing legal assistance to inmates are 23 important for providing inmates with access to the courts, Smith has not alleged sufficient facts to 24 show that the prison denied him essential legal services. See Bounds v. Smith, 430 U.S. 817, 830 25 (1977) (explaining that law libraries are not necessary to assure meaningful access to the courts), 26 overruled on other grounds by Lewis v. Casey, 518 U.S. 343 (1996). Smith neither alleges that he 27 attempted to ask for additional help in researching his legal claim nor asserts that he was unable to 28 gain the forms necessary to file his complaint between 2011 and 2014. James C. Mahan U.S. District Judge -5- 1 Finally, Smith’s allegations that: (1) Seymore and Warburton were spying on him; and (2) 2 they were monitoring his mail and phone calls to assure that he did not file a legal complaint, are 3 merely speculative. Iqbal, 556 U.S. at 678. Smith asserts that the officers were monitoring him, 4 but he alleges no facts that bring this allegation “above the speculative level.” Twombly, 550 U.S. 5 at 555. Therefore, the court grants the present motion to dismiss because Smith’s claims are time- 6 barred by the applicable statute of limitations. 7 IV. 8 9 Conclusion The court grants defendants’ motion to dismiss because the statute of limitations has run on Smith’s sole claim. 10 Accordingly, 11 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Seymore and Warburton’s 12 motion to dismiss (ECF No. 15) be, and the same hereby is, GRANTED without prejudice. 13 The clerk shall enter judgment accordingly and close the case. 14 DATED February 14, 2017. 15 16 __________________________________________ UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?