Avery Jr v. Las Vegas Metro Police Department
2:16-cv-01774
| D. Nev. | Aug 18, 2020Background
- On December 31, 2014, LVMPD Officers stopped a car for suspended plates, suspected a weapon, and began pat-downs; Avery fled, tripped, and officers pursued and took him to the ground.
- Officer Donovan struck Avery once (closed-fist) during the struggle; officers later found a loaded 9mm pistol in Avery’s right waistband; Avery alleges additional force (head slammed to car) while handcuffed.
- Avery was booked at Clark County Detention Center (CCDC) and alleges booking staff and a nurse refused or delayed medical care for his bleeding/broken nose.
- Avery sued under 42 U.S.C. § 1983 asserting excessive force (Fourth Amendment) and deliberate indifference to medical needs (Fourteenth/Eighth) against officers and LVMPD; he sought monetary and injunctive relief.
- Defendants moved for summary judgment; Avery filed his own summary-judgment motion but did not respond to Defendants’ MSJ; the court granted Defendants’ MSJ and denied Avery’s MSJ.
- Court holdings turned on (1) absence of excessive-force evidence under Graham factors, (2) qualified immunity/unclearly-established-law, and (3) lack of evidence of municipal policy or personal involvement in denial of medical care and failure to identify booking staff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive force (Fourth Amendment) | Donovan punched Avery after surrender; Parquette slammed his head into car while handcuffed. | Tackle and single punch were reasonable to prevent access to suspected firearm during flight/struggle. | No excessive force; use of force reasonable under Graham factors. |
| Qualified immunity (officers) | Officers’ actions violated clearly established rights. | Even if force occurred, law was not clearly established; officers entitled to immunity. | Officers entitled to qualified immunity; plaintiff failed to show clearly established law. |
| Deliberate indifference to medical needs (Fourteenth/Eighth) against LVMPD | Booking staff and nurse laughed/refused care; delay caused lasting breathing issues. | No evidence officers caused or participated in denial; plaintiff failed to identify the booking staff/nurse or show LVMPD policy/custom. | Summary judgment for defendants; no evidence of municipal policy/custom or personal involvement. |
| Official-capacity monetary claims | Seeks money and medical injunctive relief from officers in official capacity. | Official-capacity money claims against state officers are not actionable under § 1983. | Official-capacity monetary claims dismissed; injunctive relief not implicated for officers. |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (establishes objective-reasonableness standard for excessive force)
- County of Los Angeles v. Mendez, 137 S. Ct. 1539 (Graham factors require careful attention to case-specific facts)
- Mattos v. Agarano, 661 F.3d 433 ( Ninth Circuit en banc decision emphasizing immediate-threat factor )
- A.K.H. by & through Landeros v. City of Tustin, 837 F.3d 1005 (discusses excessive-force and qualified-immunity inquiry)
- Shafer v. County of Santa Barbara, 868 F.3d 1110 (clarifies clearly-established-law analysis for use-of-force sequences)
- Blankenhorn v. City of Orange, 485 F.3d 463 (tackling/punching not necessarily unconstitutional)
- Gordon v. County of Orange, 888 F.3d 1118 (pretrial detainees’ medical claims arise under the Fourteenth Amendment)
- Horton by Horton v. City of Santa Maria, 915 F.3d 592 (municipal liability requires policy/custom or failure to train causing constitutional deprivation)
- Will v. Michigan Department of State Police, 491 U.S. 58 (state officers sued in official capacity are not "persons" under § 1983 for money damages)