Davis v. City of Reno ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Case No.: 3:22-cv-00326-RCJ-CSD HASAN M. DAVIS, 4 Order Plaintiff 5 Re: ECF No .32 v. 6 RPD TRIPLETT, et al., 7 Defendants 8 9 On September 13, 2023, the court issued an order screening Plaintiff’s amended 10 complaint. (ECF No. 29.) The amended complaint named as defendants Reno Police Department 11 Officer Triplett, Reno Police Department, and the City of Reno. (ECF No. 25.) 12 Plaintiff alleged that Officer Triplett used his handcuffs like a knife tearing into 13 Plaintiff’s left wrist causing pain and blood to pour from his wrist. In addition, he put an 14 unknown grease substance or chemical into Plaintiff’s cut. This occurred during his arrest, and 15 Plaintiff avers that he was not obstructing officers’ commands and was compliant at all times. He 16 was allowed to proceed with a Fourth Amendment excessive force claim by an arrestee against 17 Triplett. (ECF No. 29.) 18 In addition, the court found that the City of Reno, and not the Reno Police Department, 19 may be a proper defendant, but Plaintiff did not include sufficient allegations to state a claim 20 against the City of Reno under Monell v. Department of Social Services, 436 U.S. 658, 690-95 21 (1978). He was given leave to amend to assert a claim against the City of Reno. (Id.) 22 A summons was issued for Triplett (ECF No. 30), but it was returned unexecuted, 23 indicating that the U.S. Marshal was unable to locate Triplett. (ECF No. 31.) 1 On October 6, 2023, Plaintiff filed an amended complaint (ECF No. 32), which the court 2 construes as Plaintiff’s second amended complaint (SAC). The complaint names the City of 3 Reno and Officer Matt Durio. The complaint includes essentially the same allegations that were 4 included in the amended complaint against Triplett, but they are now asserted against Durio, and 5 Plaintiff states that he wishes to exclude Triplett as a defendant. Plaintiff states a colorable 6 Fourth Amendment excessive force claim against Durio. 7 While Plaintiff names the City of Reno in the SAC, there are no allegations against the 8 City of Reno. Plaintiff has one final opportunity to amend to state a claim against the City of 9 Reno under Monell as discussed in the order screening the amended complaint. He is not 10 permitted to amend in any other regard. 11 CONCLUSION 12 (1) The SAC (ECF No. 32) is currently the operative pleading. 13 (2) Plaintiff is permitted to PROCEED with his Fourth Amendment excessive force 14 claim against Durio and this action is NO LONGER PROCEEDING against Triplett; however, 15 the City of Reno is DISMISSED WITH LEAVE TO AMEND. 16 (3) Plaintiff has 30 DAYS from the date of this Order to file a third amended complaint 17 correcting the deficiencies noted above with respect to the City of Reno. The third amended 18 complaint must be complete in and of itself without referring or incorporating by reference any 19 previous complaint. Any allegations, parties, or requests for relief from a prior complaint that are 20 not carried forwarded in the amended complaint will no longer be before the court (i.e., Plaintiff 21 must include the allegations of excessive force against Durio as well as any allegations 22 supporting a claim against the City of Reno). If Plaintiff fails to timely file a third amended 23 complaint, this action will proceed only with the Fourth Amendment excessive force claim 1 against Durio in the SAC. Alternatively, Plaintiff may file a notice with the court within 30 days 2 indicating that he only wishes to proceed against Durio and not against the City of Reno. 3 (4) The Clerk of Court shall ISSUE a summons for defendant Durio, and deliver the 4 same, to the U.S. Marshal for service. The Clerk also shall also SEND sufficient copies of the 5 second amended complaint (ECF No. 32) and this Order to the U.S. Marshal for service on the 6 Durio. The Clerk shall SEND to Plaintiff a USM-285 form. Plaintiff has 21 days to furnish to 7 the U.S. Marshal the required USM-285 form with the relevant information for the defendant. 8 The USM-285 form should be sent to the U.S. Marshal at 400 S. Virginia Street, 2nd floor, 9 Reno, Nevada 89501. Within 20 days after receiving from the U.S. Marshal a copy of the USM- 10 285 form showing whether service has been accomplished, if the defendant was not served, and 11 if Plaintiff wants service to be attempted again, he must file a motion with the court providing a 12 more detailed name and/or address for service, or indicating that some other method of service 13 should be attempted. 14 (5) Plaintiff is reminded that under Federal Rule of Civil Procedure 4(m), service on 15 Durio must be completed within 90 days of the date of this Order. If Plaintiff requires additional 16 time to meet any of the deadlines set by the court, he must file a motion for extension of time 17 under Local Rule 1A 6-1 before the expiration of the deadline, and the motion must be supported 18 by a showing of good cause. 19 (6) Finally, the court notes that Plaintiff has not filed a notice of change of address 20 indicating his current address at the Washoe County Detention Facility as previously ordered and 21 as is required under Local Rule IA 3-1. The Clerk shall SERVE a copy of this Order on Plaintiff 22 at the Washoe County Detention Facility; however, Plaintiff has 21 days from the date of this 23 1} Order to file his notice of change of address. If he fails to do so, the undersigned will 2\|recommend dismissal of this action without prejudice pursuant to LR JA 3-1. 3 IT IS SO ORDERED. 4|| Dated: December 1, 2023 CS On Craig S. Denney 6 United States Magistrate Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23