McCurdy v. Alvarez

Full title: LAURICE McCURDY, Plaintiff, v. Officer Lisa Alvarez, et al., Defendants

Court: United States District Court, D. Nevada

Date published: Mar 29, 2011

2:08-CV-01742-PMP-PAL (D. Nev. Mar. 29, 2011)

Opinion

2:08-CV-01742-PMP-PAL.

March 29, 2011

ORDER

PHILIP PRO, District Judge

On March 4, 2011, this Court entered an Order (Doc. #115) granting Defendant's Motion for Summary Judgment (Doc. #104). The Court's Order (Doc. #115) was predicated in part upon the failure of Plaintiff McCurdy to file a timely response in opposition to Defendants' motion for summary judgment. However, it appears that on the same date, March 4, 2011, Plaintiff McCurdy in fact filed an Response in Opposition to Defendants' Motion for Summary Judgment (Doc. #114). As a result, the Court finds it appropriate to grant Plaintiff McCurdy's Motion for District Judge to Reconsider (Doc. #118) filed March 23, 2011, and to consider Defendants' Motion for Summary Judgment solely on its merits.

Specifically, the Court finds that Defendants are entitled to judgment as a matter of law because Plaintiff McCurdy has failed to demonstrate the existence of a genuine issue of material fact regarding the claims set forth in his complaint. The record does not support Plaintiff's claim that Defendants' used excessive force, but instead shows that they used reasonable force necessary to restrain Plaintiff while advancing legitimate penological interests to insure the order, safety and security of the jail and its occupants. Neither does the record support Plaintiff McCurdy's contention that any Defendant filed a false incident report.

Moreover, Defendants are entitled to qualified immunity because their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson v. Callahan 555 U.S. 223 (2009). In addition, Defendants are entitled to discretionary immunity pursuant to N.R.S. 41.032.

IT IS THEREFORE ORDERED that Plaintiff's Motion for Reconsideration (Doc. #118) is GRANTED to the foregoing extent.

IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (Doc. #104) is GRANTED on its merits and judgment is hereby entered in favor of Defendants and against Plaintiff.

IT IS FURTHER ORDERED that Plaintiff's Motion for District Judge to Reconsider the Order Denying Motion for Recusal (Doc. #119) is DENIED.

DATED: March 28, 2011.