Foley v. Graham et al

Filing 71

ORDER Granting 66 Motion to Dismiss with prejudice. Signed by Judge Jennifer A. Dorsey on 12/2/2020. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:16-cv-01871-JAD-VCF Document 71 Filed 12/02/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 Michael Foley,
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Case No.: 2:16-cv-01871-JAD-VCF

Plaintiff
Order Granting Motion to Dismiss and
Closing Case

5 v.
6 Kurt Graham, et al.,
7

[ECF No. 66]

Defendants

8

After two rounds of unsuccessful amendments, I dismissed Plaintiff Michael Foley’s

9 excessive-force lawsuit against official-capacity defendant Kurt Graham. 1 But I gave Foley one
10 last chance to amend his complaint if he could plead true facts showing that Graham’s tight
11 handcuffing during Foley’s 2014 arrest (1) rose to the level of a constitutional violation and (2)
12 was done because of a County policy, practice, or custom. 2 In that order, I explained that if
13 Foley chose to amend his complaint, he could neither rely on any previous versions of his
14 complaint nor “include any claims other than [the] singular [Monell v. Department of Social
15 Services] claim.” 3
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Foley ignored those directions and instead re-filed his previously dismissed complaint

17 with two new pages of unrelated facts 4 that do not cure his complaint’s deficiencies, and which
18 Graham now moves to dismiss. 5 In his new filing, Foley alleges that Graham handcuffed him
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ECF No. 63 (order granting third motion to dismiss).

2

Id. at 5–6.

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Id. at 6.

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ECF Nos. 64 (third amended complaint), 65 (errata).

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ECF No. 66 (motion to dismiss). Previously dismissed defendants Las Vegas Metropolitan
Police Department and Douglas Gillespie join Graham’s motion because Foley’s third amended

Case 2:16-cv-01871-JAD-VCF Document 71 Filed 12/02/20 Page 2 of 3

1 too tightly one year after the incident identified in his previous complaint, but once Foley told
2 Graham to loosen the handcuffs, Graham complied. 6 He adds that, since Foley’s 2014 arrest,
3 Graham is now required to ask detainees if their handcuffs are too tight. 7 But these allegations
4 fall short of what is required under Monell and its progeny, which I informed Foley of in my last
5 dismissal order. Foley has not pled any true facts to show that Graham handcuffed him in 2014
6 in a manner that would rise to the level of a constitutional violation, and he fails to show how a
7 factually distinct occurrence—one year later—establishes a “pattern of similar constitutional
8 violations by [an] untrained [County] employee[].” 8 So I grant Graham’s motion to dismiss
9 Foley’s complaint.
10

To be clear, Foley’s inadequately pled complaint—which improperly includes a

11 previously dismissed claim and prior versions of his complaint—was not the product of his
12 oversight or inexperience, or the fact that he is litigating without an attorney. He purposefully
13 violated the previous order, noting that he:
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[A]mended his complaint alleging all facts because he is NOT
going to file an amended complaint that would in any way
foreclose his claims previously dismissed by the court. This court,
as well as other courts, have repeatedly warned the plaintiff that
amended complaints supercede [sic] prior complaints. Filing an
amended complaint leaving out the prior claims would effectively
waive the prior claims and the plaintiff isn’t going to waive any
claim, or give any court of appeal an easy opportunity to deny the
plaintiff justice later in the future. 9

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complaint included claims against them, even though those claims were previously dismissed.
21 ECF No. 68 (joinder).
6
ECF No. 65 at 6–7.
22 7
Id. at 7.
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8

Connick v. Thompson, 563 U.S. 51, 61 (2011).

9

ECF No. 69 at 1.
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Case 2:16-cv-01871-JAD-VCF Document 71 Filed 12/02/20 Page 3 of 3

1 To be sure, my previous dismissal orders were not mere suggestions or traps designed to get
2 Foley to “waive” claims. Foley has now had several chances to fix his complaint, along with this
3 court’s instructions for successfully doing so, and the fact that he still fails to state a claim at this
4 juncture indicates that he cannot.
5

IT IS THEREFORE ORDERED that Defendant Kurt Graham’s motion to dismiss [ECF

6 No. 66] is GRANTED. This case is dismissed with prejudice, and the Clerk of Court is
7 directed to ENTER JUDGMENT ACCORDINGLY and CLOSE THIS CASE.
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_______________________________
U.S. District Judge Jennifer A. Dorsey
December 2, 2020

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