Davis v. City of Reno ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 HASAN M. DAVIS, Case No.: 3:22-cv-00326-RCJ-CSD 4 Plaintiff Order 5 v. Re: ECF No. 36 6 RPD TRIPLETT, et al., 7 Defendants 8 9 On December 1, 2023, the court issued an order screening Plaintiff’s second amended 10 complaint finding that Plaintiff stated a Fourth Amendment excessive force claim against Durio, 11 and giving him leave to amend to assert a claim against the City of Reno. (ECF No. 34.) 12 Plaintiff has filed a third amended complaint (TAC). The TAC only names Reno Police 13 Department Officer Matt Durio as a defendant. The SAC does not include a claim against the 14 City of Reno. In the SAC, Plaintiff alleges that Durio detained him on June 3, 2022, and while 15 handcuffing Plaintiff, he cut Plaintiff’s wrist causing him to blead and smeared an unknown 16 greasy substance into Plaintiff’s wound without his consent. (ECF No. 36 at 3.) In Claim 1, 17 Plaintiff alleges that Durio’s conduct in applying the handcuffs and subsequently the greasy 18 substance to Plaintiff’s wound was objectively unreasonable. Plaintiff also includes Claim 2 19 which asserts a violation of the Fourteenth Amendment right to be free from punishment, and 20 again asserts that Plaintiff’s actions were intended to punish Plaintiff when viewed objectively. 21 The court does not find that Claim 2 actually asserts a separate claim, but poses another 22 theory of relief. If Plaintiff was a free citizen or arrestee when he was detained and Durio used 23 the alleged force against him, his claim is governed by the Fourth Amendment. See Graham v. 1 Connor, 490 U.S. 386 (1989). If, on the other hand, Plaintiff had already been arrested and was 2 detained (such as in the jail), then his claim would be governed by the Fourteenth Amendment. 3 Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015). Under either amendment, the standard is one 4 of objective reasonableness. Plaintiff’s status can be explored in discovery and then the 5 constitutional amendment will be applied. 6 As such, Plaintiff’s action will proceed with the excessive force claim against Matt 7 Durio, under either the Fourth or Fourteenth Amendment. The summons previously issued for 8 service on Durio was returned unexecuted with a note that service was refused because there was 9 no first name on the summons. The court will have the summons re-issued and service attempted 10 with the full name of the defendant. 11 CONCLUSION 12 (1) This action will proceed with the excessive force claim against Matt Durio under 13 either the Fourth or Fourteenth Amendment in the TAC (ECF No. 36). 14 (2) The Clerk of Court shall ISSUE a summons for defendant Matt Durio, and deliver 15 the same, to the U.S. Marshal for service. The Clerk also shall also SEND sufficient copies of 16 the TAC (ECF No. 36) and this Order to the U.S. Marshal for service on Matt Durio. The U.S. 17 Marshal shall attempt to serve Matt Durio at the address previously provided by Plaintiff on the 18 USM-285 form. Within twenty (20) days after receiving from the U.S. Marshal a copy of the 19 USM-285 forms showing whether service has been accomplished, if Matt Durio was not served, 20 and if Plaintiff wants service to be attempted again, he must file a motion with the court 21 providing a more detailed name and/or address for service, or indicating that some other method 22 of service should be attempted. 23 1 (3) Plaintiff has 90 days from the date of this Order to complete service on Matt Durio. Fed. R. Civ. P. 4(m). If Plaintiff requires additional time to meet any of the deadlines set by the court, he must file a motion for extension of time under Local Rule 1A 6-1 before the expiration of the deadline, and the motion must be supported by a showing of good cause. A motion filed 5] after a deadline set by the court or applicable rules will be denied absent a showing of excusable neglect. 7 (4) Plaintiff shall serve upon defendant(s) or, if an appearance has been entered by 8]| counsel, upon the attorney(s), a copy of every pleading, motion or other document submitted for consideration by the court. If Plaintiff electronically files a document with the court’s electronic 10}| filing system, no certificate of service is required. Fed. R. Civ. P. 5(d)(1)(B); LR IC 4-1(b); LR If Plaintiff mails the document to the court, Plaintiff shall include with the original document submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the defendants or counsel for the defendants. If counsel has entered a notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice 15|| of appearance, at the physical or electronic address stated therein. The court may disregard any 16]| document received by a district judge or magistrate judge which has not been filed with the 17|| Clerk, and any document received by a district judge, magistrate judge, or the Clerk which fails 18]| to include a certificate showing proper service when required. IT IS SO ORDERED. 20 Dated: January 11, 2024 co 22 Ss Craig S. Denney 23 United States Magistrate Judge