Richardson v. Reno Police Department et al

Filing 32

ORDER that Defendants' motion to dismiss (ECF No. 15 ) is denied; and Plaintiff's motion to stay (ECF No. 22 ) is denied. Signed by Judge Miranda M. Du on 8/9/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ARTHUR D. RICHARDSON,

Case No. 3:17-cv-00383-MMD-WGC
Plaintiff,

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ORDER

v.
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RENO POLICE DEPARTMENT, et. al.,
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Defendants.
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I.

INTRODUCTION

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Plaintiff Arthur D. Richardson (“Richardson”), who is proceeding pro se, asserts that

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Reno Police Department (“RPD”) officers used excessive force in violation of his Fourth

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Amendment rights when they fired at him after he no longer posed a threat. Defendants

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Aaron Flickinger (“Flickinger”), Christopher Good (“Good”) and Wes Leedy (“Leedy”)

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(collectively, “the Officers”) filed a motion to dismiss Richardson’s claims (“Defendants’

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Motion”). (ECF No. 15.) Richardson filed a response and a motion to stay (“Plaintiff’s

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Motion”). (ECF Nos. 21, 22.) The Court has reviewed the Officers’ reply. (ECF No. 24.)

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For the reasons discussed herein, Defendants’ Motion is denied; and Plaintiff’s Motion

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(ECF No. 22) is denied as moot.

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II.

RELEVANT BACKGROUND

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After screening conducted under 28 U.S.C. §§ 1915 and 1915A, the Court

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permitted Richardson to proceed on his Fourth Amendment excessive force claims

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against the Officers.1 (ECF Nos. 7, 9.) Richardson’s claims arise from an incident that

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occurred in a casino parking garage on June 21, 2015. The following facts are taken from

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Richardson’s Complaint. (ECF No. 10.)

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The Officers received reports from security at the Eldorado Casino or Silver Legacy

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Casino in Reno about an altercation involving a firearm nearby. “The bulletin from dispatch

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provided information describing the Plaintiff [and] what he was wearing. The dispatcher

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also pointed out that the ‘suspect’ was armed with a gun.” (ECF No. 10 at 5.) When the

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Officers approached Richardson, they agreed to utilize a “lethal confrontation towards the

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Plaintiff without first attempting a non-lethal confrontation and arrest.” (Id. at 3.) The

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Officers did not identify themselves as the police, and they yelled out conflicting

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instructions “that left the Plaintiff confused and scared.” (Id. at 6.) Richard started to “back

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pedal[] away from the police and he pulled out his gun.” (Id.) Once the Officers saw the

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gun in Richardson’s hand, they pulled out their weapons and began firing at Richardson.

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Flickinger and Good shot Richardson “striking him approximately eight times, until the

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Plaintiff dropped the gun and then he began to fall to the ground.” (Id.) At that point, Leedy

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started to fired his weapon, “shooting [Richardson] three more times even after

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[Richardson] was down.” (Id.) Good and Flickinger “discharged their weapons again as

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well.” (Id.) Richardson “was struck an additional five times after dropping his weapon and

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attempting to surrender.” (Id.) Richardon was shot at an additional five times, with three of

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those shots coming from Leedy. While Richardson pulled out his firearm, he did not fire

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during the incident.
Plaintiff alleges that the Officers’ conduct “caused serious injury and disfigurement.”

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(Id. at 4.)

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Complaint also named RPD but the Court dismissed any claims against RPD
with leave to amend. (ECF No. 7 at 6; ECF No. 9 at 2.) Plaintiff elected not to amend.
(ECF No. 8.)
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III.

PLAINTIFF’S MOTION TO STAY (ECF NO. 22)

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Richardson asks the Court to stay proceedings on the Officers’ Motion to permit

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him to conduct discovery or to grant a temporary stay until he is released from custody,

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which he anticipates to be in July 2018.2 (ECF No. 22 at 1-2.) The Officers responded that

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they do not oppose Richardson’s request to stay the case. (ECF No. 24 at 1 n.1.) However,

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to the extent Richardson’s request is for a stay of the case until July 2018, that time has

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now expired, rendering his request moot. Accordingly, the Court will proceed to address

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Defendants’ Motion.

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IV.

DEFENDANT’S MOTION TO DISMISS (ECF NO. 15)

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A.

Legal Standard

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a

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short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

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R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does

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not require detailed factual allegations, it demands more than “labels and conclusions” or

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a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations

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must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to

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survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a

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claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled

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to the assumption of truth. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause

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of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a

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2Richardson

appears to be have been released in June 2018. (See ECF No. 31
(showing Richardson’s change of address from the Northern Nevada Correctional Center
to Sparks, Nevada).)
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district court must consider whether the factual allegations in the complaint allege a

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plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s

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complaint alleges facts that allow a court to draw a reasonable inference that the

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defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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“alleged—but . . . not shown—that the pleader is entitled to relief.” Id. at 679 (internal

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quotation marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

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A complaint must contain either direct or inferential allegations concerning “all the

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material elements necessary to sustain recovery under some viable legal theory.”

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Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

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1106 (7th Cir. 1989)).

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Allegations in pro se complaints are held to less stringent standards than formal

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pleadings drafted by lawyers, and must be liberally construed. See Hughes v. Rowe, 449

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U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); see also

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Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011); Balistreri v. Pacifica Police Dep’t,

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901 F.2d 696, 699 (9th Cir. 1990). Though pro se pleadings are to be liberally construed,

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a plaintiff must still present factual allegations sufficient to state a plausible claim for relief.

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Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).

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B.

Request for Judicial Notice

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The Officers rely on the following evidence outside the pleadings to support their

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Motion: (1) a document titled “Sparks Police Department Officer Involved Shooting

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Overview” (“Overview”) (ECF No. 15-1);3 (2) surveillance video of the Silver Legacy

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parking garage (ECF No. 15-2); (3) transcript of interview of Richardson which was

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presumably conducted as part of the investigation documented in the Overview (ECF No.

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15-3); (4) Judgment of Conviction filed on January 22, 2016, in the Second Judicial District

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Overview appears to be a report of the Sparks Police Department’s
investigation into the Officers’ shooting of Richardson.
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Court (ECF No. 15-4); and (5) a document titled “Report on the June 21, 2015 Officer

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Involved Shooting of Arthur Dell Richardson Jr.” that appears to have been prepared by

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the Office of the Washoe County District Attorney (ECF No. 15-5). (ECF No. 15 at 2-5.)

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The Officers insist that the Court should take judicial notice of the facts found in the

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proffered evidence because “Plaintiff’s allegations concern matters documented in police

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reports, court records and other public records” and “Plaintiff referenced some of those

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records in his complaint.” (Id. at 2.) The Officers overstate the Court’s judicial notice

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authority and understate their burden in moving for dismissal under Rule 12(b)(6).

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Federal Rule of Evidence 201 provides that “[t]he court may judicially notice a fact

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that is not subject to reasonable dispute because it: (1) is generally known within the

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court's territorial jurisdiction; or (2) can be accurately and readily determined from sources

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whose accuracy cannot reasonably be questioned.” Courts “may take judicial notice of

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undisputed matters of public record,” including filings in federal or state courts. Harris v.

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Cty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012).

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Here, the Officers ask the Court to take judicial notice of materials that are not part

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of any public record, other than the Judgment of Conviction. The Court can take judicial

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notice of the Judgment of Conviction, showing that that Richardson was convicted of

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Assault with a Deadly Weapon Upon an Officer, Being a Felon in Possession of a Firearm,

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and Aiming a Firearm at a Human Being (ECF No. 15-4 at 2). However, the other items,

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including the Overview, transcript of Richardson’s interview and the surveillance video

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footage, are not part of any public record. Nor can the Court find that the facts asserted in

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these materials that the Officers rely on in support of their Motion “can be accurately and

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readily determine from sources whose accuracy cannot reasonably be questioned.” See

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Fed. R. Evid. 201.

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Moreover, the Officers rely on information in the Overview, including the interview

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of Richardson, to dispute Richardson’s allegations and support their version of the facts.

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However, the Court must accept the factual allegations in the Complaint as true in

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considering dismissal under Rule 12(b)(6). See Iqbal, 556 U.S. at 679. The Officers’ facts
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are not true or undisputed simply because they are contained in the Overiew, the transcript

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of Richardson’s interview or and even videos. Take for example the video footage in the

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casino surveillance videos attached to Defendants’ Motion (ECF No. 15-2). Plaintiff cites

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to the video footage in the Complaint to support his allegations that he grabbed his firearm

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because he was “merely reacting to three unidentified men who were screaming and

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running at the Plaintiff with their firearms pointed at him. No attempt to scream that ‘it’s the

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police’ was made.” (ECF No. 10 at 7.) The Officers cites to the same video footage to

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allege that “[t]he gun is concealed under Richardson’s shirt as he walks” and he “pulls a

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silver handgun from the right hand pants pocket area and points it towards the officers as

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they fire their guns at him.” (ECF No. 15 at 4.) These details as presented by Plaintiff and

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the Officers are not readily apparent to the Court from the video footage, which does not

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contain any sound. It is not readily apparent that the Officers identified themselves. Nor is

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it readily apparent that the concealed gun could be detected over Richardson’s shirt in the

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referenced footage. What is apparent is Richardon brandished a firearm, a fact which he

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alleges in the Complaint and does not dispute. (See ECF No. 10 at 3-4; ECF No. 21 at 5.)

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In sum, the Court denies the Officers’ request to take judicial notice of the

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attachments to their Motion, except for the Judgment of Conviction.

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B.

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The Officers assert two arguments in support of dismissal—that they did not use

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excessive force in violation of the Fourth Amendment and that Richardson’s claims are

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barred under Heck v. Humphrey, 512 U.S. 477 (1994). (ECF No. 15 at 6-8.) The Court

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rejects both arguments.

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Discussion

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Excessive Force

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A claim of excessive force during an arrest is analyzed under the Fourth

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Amendment’s objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 388

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(1989). To determine whether the use of force by a law enforcement officer was excessive

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under the Fourth Amendment, a court must assess whether it was objectively reasonable

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“in light of the facts and circumstances confronting [the officer], without regard to their
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underlying intent or motivation.” Id. at 397. “Determining whether the force used to effect

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a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful

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balancing of the nature and quality of the intrusion of the individual’s Fourth Amendment

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interests against the countervailing governmental interests at stake.” Id. at 396 (internal

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quotation marks omitted). In this analysis, the Court must consider the following factors:

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(1) the severity of the crime at issue; (2) whether the plaintiff posed an immediate threat

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to the safety of the officers or others; and (3) whether the plaintiff actively resisted arrest.

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Id.; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921 (9th Cir.

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2001). While these factors act as guidelines, “there are no per se rules in the Fourth

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Amendment excessive force context.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir.

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2011) (en banc).

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The Ninth Circuit has repeatedly recognized that excessive force cases are rarely

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suited for summary judgment, let alone dismissal under Rule 12(b)(6). “Because [the

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excessive force inquiry] nearly always requires a jury to sift through disputed factual

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contentions, and to draw inferences therefrom, we have held on many occasions that

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summary judgment or judgment as a matter of law in excessive force cases should be

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granted sparingly.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002); see also Liston v.

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Cty. of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997) (“We have held repeatedly that

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the reasonableness of force used is ordinarily a question of fact for the jury.”).

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Plaintiff alleges that the Officers engaged in excessive force when they continued

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to fire shots at him as he was falling and after he had fallen on the ground. In particular,

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Plaintiff alleges that Leedy fired “three more times even after the Plaintiff was down.” (ECF

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No. 10 at 6.) He alleges that Good and Flickinger “discharged their weapons again as well”

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and that he “was struck an additional five times after dropping his weapon and attempting

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to surrender.”4 (Id.) Accepting these allegations as true, Plaintiff no longer posed as a

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threat after he was shot, he was laying on the ground and he was no longer resisting arrest

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if the Court were to consider the video surveillance, the truth of these
allegations cannot be readily determined.
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when the Officers fired shots at him and striking him again. These allegations state a

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plausible claim for relief for excessive force in violation of Plaintiff’s Fourth Amendment

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rights.
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Heck Bar

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The Officers argue that Plaintiff’s claims are barred under Heck because “he was

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convicted for the behavior that caused police to use force against him.” (ECF No. 15 at 8.)

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Plaintiff counters that he is challenging the force used after he had fallen and no longer

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presented a threat, not the initial use of force. He states: “The Plaintiff recognizes that he

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violated the law when he pointed a gun at police and he realizes that in that situation the

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police had a right to shoot for the purpose of neutralizing the threat but once the threat is

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neutralized all shots from that point on become excessive force.” (ECF No. 21 at 7.)

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In Heck v. Humphrey, the Supreme Court held that “in order to recover damages

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for allegedly unconstitutional conviction or imprisonment, or for other harm caused by

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actions whose unlawfulness would render a conviction or sentence invalid, a § 1983

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plaintiff must prove that the conviction or sentence has been reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make such

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determination, or called into question by a federal court’s issuance of a writ of habeas

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corpus . . . .” 512 U.S. at 486-87 (footnote omitted). However, “if the district court

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determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity

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of any outstanding criminal judgment against the plaintiff, the action should be allowed to

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proceed, in the absence of some other bar to the suit.” Id. at 487 (footnotes omitted).

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Here, Plaintiff readily admits that he is not challenging the conduct that led to his

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convictions, including his brandishing of a firearm that caused the Officers to fire shots at

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him initially. Instead, Plaintiff challenges the Officers’ alleged use of force after he had

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been neutralized that caused him significant injuries. Plaintiff’s claims, even if successful,

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will not undermine the validity of the convictions found in the Judgment of Conviction.

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Thus, the Court finds that Plaintiff’s claims are not barred under Heck.

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V.

CONCLUSION

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The Court notes that Defendant made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the parties’

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motions.

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It is therefore ordered that Defendants’ motion to dismiss (ECF No. 15) is denied.

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It is further ordered that Plaintiff’s motion to stay (ECF No. 22) is denied.

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DATED THIS 9th day of August 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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