Freelove v. Weishaupt

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 * * *

6 JUSTIN MORGAN FREELOVE, et al., Case No. 3:20-cv-00571-ART-CSD

7 Plaintiff, ORDER v. 8 KELLI WEISHAUPT, et al., 9 Defendant. 10 11 12 Pro se Plaintiffs Justin Morgan Freelove and Jessica Kay Freelove has filed 13 an Amended Complaint suing Defendants Kelli Weishaupt, Kathryn Beatty, Leslie 14 Reyes, and Senon Rubio, Churchill County, Nevada social workers (collectively, 15 “Social Worker Defendants”), in their official capacities, along with Director of the 16 Nevada Board of Examiners Karen Oppenlander, in her official capacity, for 17 alleged violations of Plaintiffs’ constitutional rights under 42 U.S.C. § 1983 18 regarding what appears to have been an investigation into alleged child abuse, 19 and related administrative appeals, state court, and custody proceedings. (ECF 20 No. 46.) 21 This Court previously dismissed Plaintiff’s Complaint because they drafted 22 their Complaint in a way that that was noncompliant with the Federal Rules of 23 Civil Procedure and otherwise indecipherable. (ECF No. 43.) This Court also noted 24 that Plaintiffs’ response to Defendants’ motions to dismiss was untimely and did 25 not respond to the arguments in Defendants’ motions creating an issue under LR 26 7-2(d), which provides in pertinent part, “[t]he failure of an opposing party to file 27 points and authorities in response to any motion, except a motion under Fed. R. 28 Civ. P. 56 or a motion for attorney’s fees, constitutes a consent to the granting of 1 the motion.” Under this Rule, the Court could have granted Defendants’ Motions 2 simply because Plaintiffs did not respond to any of the arguments in them. (Id.) 3 The Court, however, elected to address the merits of Defendants’ motions 4 in the event Plaintiffs elected to continue to proceed pro se primarily so that the 5 Court’s analysis could be “instructive.” (Id.) The Court went on to explain that the 6 Complaint was subject to dismissal because Plaintiffs sued all Defendants in their 7 official capacities, but neither a “neither a State nor its officials acting in their 8 official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State 9 Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment also barred the claims 10 because Plaintiffs sued the Defendants in their official capacities. See Romano v. 11 Bible, 169 F.3d 1182, 1185 (9th Cir. 1999). Third, and because Plaintiffs attempt 12 to sue Nevada state officials in their official capacities, Plaintiffs must have served 13 their complaint in accordance with NRS 41.031(2), but they did not appear to 14 have done so. Plaintiffs were given leave to amend their complaint. (Id.) 15 Plaintiffs filed an Amended Complaint (ECF No. 46) on February 16, 2022. 16 On March 2, 2022, Defendants filed motions to dismiss arguing that the Amended 17 Complaint should be dismissed with prejudice because Plaintiffs were given an 18 opportunity to file a legally and factually supported complaint but failed to do so. 19 (ECF Nos. 47; 48.) Plaintiff’s opposition was due March 16, 2022. No opposition 20 been filed. 21 The Court now grants Defendants’ motions without reaching the merits. 22 Both motions argue that the Amended Complaint should be dismissed in its 23 entirety and with prejudice because the Amended Complaint is as defective as 24 the initial complaint that was previously dismissed by the Court. Neither motion 25 is opposed by Plaintiffs. Under LR 7-2 (d), the “failure of an opposing party to file 26 points and authorities in response to any motion . . . constitutes a consent to the 27 granting of the motion.” Over five months have passed since Plaintiffs’ opposition 28 to the pending motions to dismiss were due. The Court finds that sufficient time 1 || has passed that, even considering Plaintiffs’ pro se status, their decision not to 2 || oppose the defendants’ motions to dismiss constitutes consent to granting the 3 || motions. 4 It is therefore ordered that Defendant Karen Oppenlander’s motion to 5 || dismiss (ECF No. 47) is granted. 6 It is further ordered that Defendants Kathryn Beatty, Leslie Reyes, Senon 7 || Rubio, and Kelli Weishaupt’s motion to dismiss (ECF No. 48) is granted. 8 It is further ordered that Plaintiffs’ Amended Complaint (ECF No. 46) is 9 || dismissed, in its entirety, with prejudice and without leave to amend. 10 It is further ordered that this case is to be administratively closed. 11 12 || DATED THIS 29t Day of August 2022. 13 een Apne Nosed I ANNE R. TRAUM 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28