Anthony McMichael v. University Medical Center, Las Vegas Metropolitan Police Department, Clark County, State of Nevada

• Court: District Court, D. Nevada
• Decided: December 9, 2025
• Docket: 2:25-cv-01829
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 ANTHONY MCMICHAEL, Case No. 2:25-cv-01829-CDS-EJY

5 Plaintiff, ORDER 6 v. AND

7 UNIVERSITY MEDICAL CENTER, LAS REPORT AND RECOMMENDATION

VEGAS METROPOLITAN POLICE 8 DEPARTMENT, CLARK COUNTY, STATE OF NEVADA, 9 Defendants. 10 11 Pending before the Court are Plaintiff’s Application to Proceed in forma pauperis (ECF No. 12 1) and Complaint (ECF No. 1-1). The Application is complete and granted below. 13 I. Screening Standard 14 When screening a complaint, a court must identify cognizable claims and dismiss claims that 15 are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief 16 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to 17 state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal 18 Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To 19 survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state 20 a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The 21 court liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt 22 that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 23 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 24 In considering whether the complaint is sufficient to state a claim, all allegations of material 25 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 26 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 27 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 1 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 2 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 3 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 4 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 5 II. Plaintiff’s Complaint 6 Plaintiff’s Complaint arises from an incident at University Medical Center (“UMC”). ECF 7 No. 1-1 at 2. As alleged in the Complaint, Plaintiff was in a hallway, handcuffed to a hospital bed, 8 when an unidentified doctor approached him. Id. at 3. The unidentified doctor is alleged to have 9 cut open Plaintiff’s sweatshirt, pulled down Plaintiff’s pants and boxers, grabbed Plaintiff’s penis, 10 and said “what are you going to do with this.” Id. at 3. Plaintiff alleges a Las Vegas Metropolitan 11 Police Department (“LVMPD”) officer—Officer Young who is not a named defendant—was the 12 individual who handcuffed him to the bed. Id. Plaintiff avers generally that the incident was 13 captured on police bodycam footage though it is unclear whose body camera footage captured the 14 event. See id. at 3. Plaintiff further contends Sergeant Pastuna—also not named as a defendant— 15 should have investigated the incident and failed to “address this occurrence or [Plaintiff’s] needs.” 16 Id. at 5. 17 III. Discussion

18 a. Plaintiff Fails to State a Fourth Amendment Claim. 19 Plaintiff attempts to raise an excessive force claim. Id. at 4. Excessive force is analyzed 20 under the Fourth Amendment and the inquiry focuses on “whether the officers’ actions are 21 objectively reasonable in light of the facts and circumstances confronting them.” Graham v. Connor, 22 490 U.S. 386, 397 (1989) (internal citations omitted). Here, Plaintiff’s bare allegation that Officer 23 Young handcuffed him to a hospital bed is insufficient to support the conclusion that this was an 24 objectively unreasonable use of force. The subsequent events allege by Plaintiff do not change the 25 analysis of whether initial handcuffing was excessive. Plaintiff’s Fourth Amendment excessive 26 force fails as pleaded; however, leave to amend is granted. 27 1 b. There is no Constitutional Right to an Investigation. 2 Plaintiff cannot state a claim against Sergeant Pastuna’s based on his alleged failure to 3 investigate. Said simply, there is no substantive due process right to an investigation. Gini v. Las 4 Vegas Metropolitan Police Dept., 40 F.3d 1041, 1045 (9th Cir. 1994) (“The police have no 5 affirmative obligation to investigate a crime in a particular way or to protect one citizen from another 6 even when one citizen deprives the other of liberty of property”). See also Abney v. City of 7 Philadelphia, Case No. CIV A 96-08111, 1999 WL 360202, * 2 (E.D. Pa. May 26, 1999) (rejecting 8 civil rights claims premised on a police officer’s failure to investigate plaintiff’s assault, and his 9 classification of plaintiff’s 911 call as “unfounded,” the court noted that “there is no substantive due 10 process right to police assistance”); Mills v. Clarke, Case No. 1:20-cv-00498-HBK (PC), 2023 WL 11 7286876, at *10 (E.D. Cal. Mar. 13, 2023) (collecting cases regarding prisoners’ rights to an 12 investigation). Accordingly, the Court recommends this claim be dismissed with prejudice.

13 c. As Pleaded, Plaintiff Fails to State a Failure to Protect Claim Under the Fourteenth Amendment. 14 15 When the entirety of Plaintiff’s allegations are considered together and liberally construed, 16 the Court finds Plaintiff may be seeking to state a due process claim under the Fourteenth 17 Amendment. That is, it appears Plaintiff is alleging LVMPD Officer Young and Sergeant Pastuna, 18 who are not named as defendants, violated his due process rights when they failed to protect him 19 from the unknown doctor who walked through the hallway where Plaintiff was handcuffed. 20 Generally, there is no constitutional right to be protected from private harm.1 Henry A. v. Willden, 21 678 F.3d 991, 998 (9th Cir. 2012) (“Generally, the Fourteenth Amendment's Due Process Clause 22 does not confer any affirmative right to governmental aid and typically does not impose a duty on 23 the state to protect individuals from third parties.” (Cleaned up.) However, there are two exceptions 24 25 1 Plaintiff does not name the unidentified assailant as a doe defendant. ECF No. 1-1. There are no facts upon 26 which the Court can discern if the individual who allegedly attacked Plaintiff was employed by UMC, visiting another patient, or even a doctor. Even if the bad actor was a doctor and an employee of UMC, this alone is not enough to 27 transform his conduct into state action. See Fox v. Arizona, Case No. CV-21-01089-PHX-MTL, 2023 WL 7327881 (D. Ariz. Nov. 7, 2023), appeal dismissed, Case No. 23-3644, 2024 WL 4851420 (9th Cir. Mar. 1, 2024). As the caselaw 1 to this general prohibition. These include the special relationship exception and the state created 2 danger exception. Johnson v. City of Seattle, 474 F.3d 634, 639 (9th Cir. 2007). 3 1. Plaintiff states no claim under the special relationship exception 4 “The special-relationship exception applies when the state takes a person into its custody and 5 holds him there against his will.” Murguia v. Langdon, 61 F.4th 1096, 1109 (9th Cir. 2023) (internal 6 citations and quotations omitted). When such a relationship exists, “the state can be liable for due 7 process violations ‘premised on an abuse of that special relationship.” Arnold v. Cnty. of Alameda, 8 Case No. 15-CV-04083-HSG, 2016 WL 4074484, at *4 (N.D. Cal. Aug. 1, 2016) (quoting L.W. v. 9 Grubbs, 974 F.2d 119, 121 (9th Cir. 1992)). “To determine whether a ‘special relationship’ exists, 10 a court may look to a number of factors, including (1) whether the state created or assumed a 11 custodial relationship toward the plaintiff; (2) whether the state affirmatively placed the plaintiff in 12 a position of danger; (3) whether the state was aware of a specific risk of harm to the plaintiff; or (4) 13 whether the state affirmatively committed itself to the protection of the plaintiff.” Louvar v. Ravalli 14 County Sheriff’s Office, Case No. CV 08-101-M-DWM-JCL, 2008 WL 4189546, at *3 (D. Mont. 15 Sept. 4, 2008) quoting Balistreri v. Pacifica Police Dept., 901 F.2d 696, 700 (9th Cir.1990). 16 Here, even if the Court presumes Plaintiff was in LVMPD’s custody, Plaintiff’s claim still 17 fails. Plaintiff cannot state a claim against LVMPD based on its employment of Officer Young or 18 Sergeant Pastuna because there is no respondeat superior liability in a 42 U.S.C. § 1983 action. Hill 19 v. Las Vegas Metro. Police Dep’t, 197 F.Supp.3d 1226, 1232-33 (D. Nev. 2016), aff’d, 705 20 Fed.Appx. 616 (9th Cir. 2017). If Plaintiff seeks to hold Clark County or UMC liable for the 21 wrongful conduct alleged, Plaintiff alleges no facts that would establish a claim under Monell v. 22 Dept. of Soc. Servs, 436 U.S. 658, 690-95 (1978).2 And, Plaintiff can raise no 42 U.S.C. § 23 2 A local governmental entity like Clark County or UMC may be held liable when it acts “pursuant to an expressly 24 adopted official policy.” Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (per curiam) (citing Monell, 436 U.S. at 694); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). See also Thompson v. Univ. Med. Ctr., Case 25 No. 2:07-cv-01378-RLH-PAL, 2008 WL 11512289 (D. Nev. Oct. 15, 2008) (finding UMC subject to suit under a properly plead Monell claim). Alternatively, Clark County or UMC may be held liable for a “longstanding practice or 26 custom” that violates a constitutional right. Thomas v. County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (citation omitted). Finally, Clark County or UMC may be liable under Section 1983 when “‘the individual who committed the 27 constitutional tort was an official with final policy-making authority’ or such an official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th 1 1983 claims against the State of Nevada as Eleventh Amendment sovereign immunity bars such 2 actions. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989); Brooks v. Sulphur Springs 3 Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991) (“[t]he Eleventh Amendment prohibits 4 federal courts from hearing suits brought against an unconsenting state” and that “[t]he Eleventh 5 Amendment’s jurisdictional bar covers suits naming state agencies and departments as defendants, 6 and applies whether the relief sought is legal or equitable in nature”); NRS § 41.031(3) (stating that 7 the State of Nevada does not waive its Eleventh Amendment immunity). 8 Finally, while it is potentially true Plaintiff could state a Fourteenth Amendment claims 9 against Officer Young and Sergeant Pastuna in their individual capacities by alleging the special 10 relationship exceptions based on being handcuffed to the hospital bed, Plaintiff does not name these 11 LVMPD officers as defendants and, in any event, fails to allege sufficient facts to plausibly plead 12 this claim. That is, while a custodial relationship was likely established when Officer Young 13 handcuffed Plaintiff to the hospital bed, Plaintiff pleads no facts establishing that this act 14 affirmatively placed Plaintiff in a position of danger. Plaintiff was in a hospital hallway, not 15 ordinarily considered a dangerous place. Nor does Plaintiff plead any facts supporting the 16 conclusion that either Officer Young or Sergeant Pastuna were aware of a specific risk of harm by 17 taking him to the hospital. There are no facts demonstrating there is any reason for these officers, 18 LVMPD generally or anyone else to know that an unknown individual would engage in what appears 19 to be a random sexual assault. 20 The Court finds Plaintiff’s liberally construed Fourteenth Amendment failure to protect claim 21 is properly dismissed for failure to state a claim. The dismissal is without prejudice and with leave 22 to amend. 23 2. State Created Danger Exception 24 The state-created danger exception requires the state: (1) to affirmatively act to place plaintiff 25 in danger, and (2) to act “with deliberate indifference to a known or obvious danger.” Murguia, 61 26 create an inference that successful amendment is possible. The facts are unusual and ascribed to a specific, yet 27 unidentified individual. That is, it is too far for the Court to reach to reasonably infer Plaintiff can allege facts demonstrating that Clark County or UMC adopted an official policy, a long standing practice, or ratified conduct 1 F.4th at 1106 (internal citations and quotations omitted). Applying this standard to Plaintiff’s claims, 2 the Court finds Plaintiff has not, and cannot, plead facts demonstrating that Officer Young, Sergeant 3 Pastuna, Clark County or LVMPD generally acted affirmatively and with deliberate indifference to 4 place Plaintiff in danger, let alone in a known obvious danger. Plaintiff claims an unidentified 5 individual, supposedly a doctor, while walking by a hospital bed at UMC, decided to strip Plaintiff 6 of his pants and underwear, grab his genitals and ask a question. This act, even if true, was obviously 7 random and unforeseeable. There is nothing to suggest, and the Court finds Plaintiff will be unable 8 to plausibly allege, this conduct was known to be generally engaged in by doctors at UMC. 9 The Court recommends that to the extent Plaintiff intended to plead a Fourteenth Amendment 10 failure to protect claim under the state created danger exception, that claim be dismissed with 11 prejudice. 12 IV. Order 13 IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in forma pauperis (ECF 14 No. 1) is GRANTED. 15 IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 1-1) be filed on the docket. 16 IT IS FURTHER ORDRED that Plaintiff’s Fourth Amendment excessive force claim is 17 dismissed without prejudice and with one opportunity to amend. 18 IT IS FURTHER ORDERED that Plaintiff’s Fourteenth Amendment Due Process claim for 19 Failure to Protect against Officer Young and Sergeant Pastuna, based on the special relationship 20 exception, is dismissed without prejudice and with one opportunity to amend. 21 IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint he must 22 do so no later than January 13, 2026. The amended complaint must be titled “AMENDED 23 COMPLAINT” and must be complete—meaning all facts and all claims Plaintiff wishes to assert 24 must be stated in the amended complaint. Plaintiff must plead sufficient facts demonstrating Officer 25 Young or other defendants, who are identified, engaged in wrongdoing establishing constitutional 26 claims. Plaintiff must not include claims recommended for dismissal with prejudice below. 27 IT IS FURTHER ORDERED that failure to file an amended complaint in compliance with 1 V. Recommendation 2 IT IS HEREBY RECOMMENDED that Plaintiff’s claim alleging a failure to investigate be 3 dismissed with prejudice. 4 IT IS FURTHER RECOMMENDED that Plaintiff’s claims alleging a Fourteenth 5 Amendment failure to protect claim based on state created danger be dismissed with prejudice 6 because the Court finds Plaintiff will be unable to amend his Complaint to state plausible facts to 7 support such a claim. 8 IT IS FURTHER RECOMMENDED that Plaintiff’s claims against UMC and Clark County, 9 be dismissed with prejudice as the Court finds, given the events about which Plaintiff complains, he 10 will be unable to allege plausible facts that will support claims against these entities. 11 IT IS FURTHER RECOMMENDED that the State of Nevada be dismiss with prejudice as 12 immune from suit. 13 Dated this 9th day of December, 2025. 14

15 ELAYNA J. YOUCHAH 16 UNITED STATES MAGISTRATE JUDGE

17 18 NOTICE 19 Under Local Rule IB 3-2, any objection to this Report and Recommendation must be in 20 writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court holds 21 the courts of appeal may determine that an appeal has been waived due to the failure to file objections 22 within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). The Ninth Circuit also held 23 that (1) failure to file objections within the specified time and (2) failure to properly address and 24 brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 25 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 26 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 27