James v. City of Henderson

• Court: District Court, D. Nevada
• Decided: September 28, 2020
• Docket: 2:19-cv-01207
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 JEFFREY ALAN JAMES, Case No. 2:19-CV-1207 JCM (BNW)

8 Plaintiff(s), ORDER

9 v.

10 CITY OF HENDERSON, et al.,

11 Defendant(s).

12 13 Presently before the court is defendants City of Henderson and the individually named 14 officers’ (collectively “Henderson defendants”) motion to dismiss. (ECF No. 5). 15 Also before the court is plaintiff Jeffrey Alan James’s (“James”) motion to extend the 16 time to respond to defendants’ motion to dismiss. (ECF No. 29). 17 I. Background 18 A. Factual History 19 James’s amended complaint alleges the following: On February 16, 2017, James was a 20 passenger in his son’s car. (ECF No. 5 at 29). Doe officers stopped the car and approached with 21 their guns drawn, demanding that James put his hands in the air. (Id.). James was then pulled 22 from the car and forced onto the pavement. (Id. at 30). As James laid face down, Doe officers 23 restrained his arms, legs, and body. (Id.). Doe officers kicked and pounded his head into the 24 pavement. (Id.). They then searched James, handcuffed him, and placed him in an officer 25 vehicle. (Id.). 26 James was taken to the emergency room at St. Rose Sienna Hospital after his arrest. 27 (Id.). He suffered multiple serious injuries including “serious injury to his face from glass and 28 rocks, contusions on his neck, face, and scalp, a concussion, a knocked out bottom tooth . . . a 1 chipped top tooth, and abrasions and a broken hand and fingers that remain disfigured to this 2 day.” (Id.). When James sought medical attention in the pill line at the Henderson Detention 3 Center later that night, a Doe officer told him: “We don’t have anything for your ovaries, get out 4 of line.” (Id. at 31). 5 When James was transferred to the Nevada Southern Detention Center in Pahrump, he 6 again sought medical attention. (Id.). His hand was eventually x-rayed eighteen days after his 7 arrest. (Id.). A specialist later concluded that a bone in James’s hand was broken from the 8 knuckle to the wrist. (Id.). His hand is now permanently disfigured. (Id.). 9 James filed a tort and civil rights action in Nevada’s Eighth Judicial District Court on 10 February 15, 2019. (ECF No. 1 at 1). James amended his complaint on February 16, 2019, and 11 named the City of Henderson (“City”) and three Henderson police officers as defendants. (Id.). 12 The Henderson defendants removed the case to this court on July 11, 2019. (ECF No. 1). 13 James alleges three claims for relief under 42 U.S.C. § 1983: excessive force during his 14 arrest in violation of the Fourth and Fourteenth Amendments, deliberate indifference to his 15 medical needs in violation of the Eighth Amendment, and municipal liability under Monell. 16 (ECF No. 5 at 27). James also alleges state law claims for negligent hiring and supervision, 17 battery, intentional infliction of emotional distress, respondeat superior, and negligence. (Id.). 18 B. Procedural History 19 On July 18, 2019, the Henderson defendants filed a motion to dismiss. (ECF No. 5). The 20 original deadline for James to file his opposition was August 1, 2019. Since that time, the parties 21 have stipulated to an extension of the deadline seven times. (ECF Nos. 8, 10, 12, 17, 20, 25, 28). 22 The most recent stipulated extensions cite James being under constant lockdown at the Lompoc 23 correctional facility because of the coronavirus pandemic. (See ECF No. 27). 24 The last stipulated extension expired on July 31, 2020. (ECF No. 28). James did not file 25 his opposition nor did the parties stipulate to another extension. Under Local Rule 7-2(d), 26 James’s failure to oppose the Henderson defendants’ motion to dismiss acts as consent to grant 27 the motion. 28 1 James did, however, file an eighth request to extend his time to oppose the motion to 2 dismiss. (ECF No. 29). The court will deny James’s motion. The Henderson defendants’ 3 motion to dismiss has been pending since July 2019, well before the coronavirus pandemic. 4 (ECF No. 5). The alleged misconduct at issue occurred in February 2017. (Id. at 29). 5 Furthermore, the court has doubts about whether any opposition from James would aid it in 6 considering the legal sufficiency of his complaint. However, the court will consider the merits of 7 the Henderson defendants’ motion to dismiss. 8 II. Legal Standard 9 The court may dismiss a complaint for “failure to state a claim upon which relief can be 10 granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must have “[a] short and plain 11 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed 13 factual allegations, it does require “more than labels and conclusions” or a “formulaic recitation 14 of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 15 omitted). Thus, to survive a motion to dismiss, a complaint must have sufficient factual matter 16 to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation omitted) 17 (emphasis added). 18 The Supreme Court in Iqbal clarified the two-step approach district courts should use to 19 rule on motions to dismiss. First, the court must accept as true all well-pleaded factual 20 allegations and draw all reasonable inferences in the plaintiff’s favor. Id. at 678–79. Mere legal 21 conclusions are not entitled to this assumption of truth. Id. Second, the court must consider 22 whether the well-pleaded factual allegations state a plausible claim for relief. Id. at 679. A 23 claim is facially plausible when the court can draw a reasonable inference that the defendant is 24 liable for the alleged misconduct. Id. at 678. When the allegations have not crossed the line 25 from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570; see 26 also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 27 . . . 28 . . . 1 III. Discussion 2 A. Pro se plaintiff 3 The court first recognizes that James has proceeded pro se since it granted his counsel’s 4 request to withdraw on February 25, 2020. (ECF No. 21). Nevertheless, “[t]he right of self- 5 representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to 6 comply with relevant rules of procedural and substantive law.” Faretta v. Cal., 422 U.S. 806, 7 834 (1975); United States v. Merrill, 746 F.2d 458, 465 (9th Cir. 1984) (“A pro se defendant is 8 subject to the same rules of procedure and evidence as defendants who are represented by 9 counsel.”). Indeed, “pro se litigants in an ordinary civil case should not be treated more 10 favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th 11 Cir. 1986). 12 As aforementioned, under Local Rule 7-2(d), “[t]he failure of an opposing party to file 13 points and authorities in response to any motion, except a motion under Fed. R. Civ. P. 56 or a 14 motion for attorney’s fees, constitutes a consent to the granting of the motion.” LR 7-2(d). The 15 Ninth Circuit addressed dismissal of a pro se plaintiff’s case under Local Rule 7-2(d) in Ghazali 16 v. Moran, 46 F.3d 52 (9th Cir. 1995). The Ninth Circuit affirmed the district court and held that 17 “[f]ailure to follow a district court’s local rules is a proper ground for dismissal.” Ghazali, 46 18 F.3d at 53. 19 However, the Ninth Circuit instructed district courts to weigh several factors before 20 dismissing a pro se plaintiff’s case under Local Rule 7-2(d). Id. These factors include: “‘(1) the 21 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 22 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases of 23 their merits; and (5) the availability of less drastic sanctions.’” Id. (quoting Henderson v. 24 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). 25 The Ghazali factors weigh in favor of dismissal. Unsurprisingly, dismissal serves the 26 public’s interest in expeditious resolution of litigation and allows the court to manage its docket. 27 This is especially true here as James filed his amended complaint on February 16, 2019, and the 28 Henderson defendants’ motion to dismiss has been pending since July 18, 2019. (ECF No. 5). 1 Whereas James is invariably prejudiced by dismissal, his failure to oppose the motion precludes 2 the court from most effectively considering the merits of the motion. Taken together, dismissal 3 is appropriate under Ghazali given James’s over yearlong failure to oppose the motion to dismiss 4 which began well before the coronavirus pandemic. 5 B. Federal law claims 6 Nevertheless, the court will consider the merits of the Henderson defendants’ motion to 7 dismiss. For the reasons set forth below, the motion is granted. The court will first consider 8 James’s federal law claims and then his state law claims. 9 The Henderson defendants move to dismiss James’s complaint in full on numerous 10 grounds. They assert that: (1) the complaint fails to meet the Twombly-Iqbal pleading standard; 11 (2) the complaint fails to state a claim upon which relief can be granted pursuant to Fed. R. Civ. 12 P. 12(b)(6); (3) the state law tort claims are time-barred under NRS § 41.036(2); (4) the 13 individually named officers are entitled to qualified immunity; (5) any punitive damage claims 14 against the City of Henderson are barred; and (6) punitive damage claims against the defendants 15 under state tort law are barred. (ECF No. 5 at 1–2). 16 1. Excessive force during arrest 17 a. Constitutional violation 18 The elements of a claim under 42 U.S.C. § 1983 are: “(1) a violation of rights protected 19 by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a 20 ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 21 1991). 22 In turn, under the Fourth Amendment, police officers may use only force that is 23 objectively reasonable under the circumstances. See Graham v. Connor, 490 U.S. 386, 397 24 (1989). Determining whether the force used in making an arrest is reasonable “requires careful 25 attention to the facts and circumstances of each particular case, including the severity of the 26 crime at issue, whether the suspect poses an immediate threat to the safety of the officers or 27 others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 28 396. 1 James names three individual Henderson officers as defendants: Detective K. Lapeer 2 (#1446), Detective K. Lippish (#1710), and Detective W. Nichols (#1242). (ECF No. 5 at 28). 3 But James never specifies what actions—illegal or otherwise—these three officers took. (Id. at 4 29–32). Thus, these three named officers are dismissed from the case without prejudice. 5 James also asserts claims against ten Doe officers. Doe pleading is disfavored in federal 6 court. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). However, when the identity of 7 the officers “will not be known prior to the filing of a complaint . . . the plaintiff should be given 8 an opportunity through discovery to identify the unknown defendants, unless it is clear that 9 discovery would not uncover the identities, or that the complaint would be dismissed on other 10 grounds.” Id. That is, if a plaintiff adequately describes the specific acts and roles of Doe 11 officers and states a colorable claim, a plaintiff can reach discovery to determine the officers’ 12 identities. 13 The court finds that James states a colorable excessive force claim against the Doe 14 officers that arrested him on February 16, 2017. (ECF No. 5 at 29). James alleges that he was 15 not resisting arrest when “Doe Officers I and II” dragged him out of a car, kicked him in the face 16 and head, and pounded his head into the pavement. (Id. at 30). James was sent to St. Rose 17 Sienna Hospital after his arrest where he was found to have “contusions on his neck, face, and 18 scalp, a concussion, a knocked out bottom tooth . . . a chipped top tooth, and abrasions.” (Id.). 19 Based on these allegations—accepted as true and viewed in light most favorable to the 20 non-moving party—the acts and roles of Doe officers are sufficiently described and plausibly 21 point to objectively unreasonable force. However, James has had ample time to identify the 22 officers who arrested him on February 16, 2017. He amended his complaint to name three 23 Henderson officers as defendants but, on the face of the complaint, he does not allege that these 24 three officers were, in fact, the ones who arrested him.1 Thus, James’s first and second claims 25 for relief2 are dismissed without prejudice. 26 27 1 See infra note 3. 28 2 The court reads James’s first and second claims for relief as really a single claim: a violation of James’s constitutional right to be free from excessive force during an arrest brought 1 b. Monell claim 2 A local government entity cannot be sued under section 1983 for “an injury inflicted 3 solely by its employees or agents.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). 4 Only when the “execution of a government’s policy or custom . . . inflicts the injury” can a local 5 government entity be held responsible. Id. Furthermore, a plaintiff generally cannot establish a 6 custom, policy, or practice with a single well-pleaded constitutional violation. See, e.g., Christie 7 v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999). A Monell claim must be based on practices of 8 “sufficient duration, frequency and consistency that the conduct has become a traditional method 9 of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 10 James has not identified a specific City of Henderson custom, policy, or practice that was 11 the “moving force” behind any alleged excessive force during his arrest. (ECF No. 5 at 33–34); 12 see also Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). Rather, he simply 13 recites the elements of a Monell claim. (ECF No. 5 at 33–34). Thus, James’s second claim for 14 relief is dismissed without prejudice. 15 2. Deliberate indifference to medical needs 16 Plaintiff claims that the defendants’ failure to treat his broken hand was a violation of his 17 “Eighth Amendment right to be free of cruel and unusual punishment” because defendants 18 “denied and delayed treatment with deliberate indifference” to his medical needs. (ECF No. 5 at 19 37). Pretrial detainees like James must sue for deliberate indifference to medical needs under the 20 Fourteenth Amendment’s Due Process Clause, not the Eighth Amendment’s Cruel and Unusual 21 Punishment Clause. Bell v. Wolfish, 441 U.S. 520, 535 (1979); Castro v. Cty. of Los Angeles, 22 833 F.3d 1060, 1067–68 (9th Cir. 2016). This error is consequential because the standard to 23 show deliberate indifference is different under each Amendment.3 See Castro, 833 F.3d at 24

25 under 42 U.S.C. § 1983. See generally Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (listing the elements of a section 1983 claim). 26 3 The court notes that while James has proceeded pro se since the court granted his 27 counsel’s request to withdraw on February 25, 2020, (ECF No. 21), the complaint was drafted with the assistance of counsel. (ECF No. 5 at 39). Therefore, it should not be held to a less 28 stringent pro se standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to 1 1067–74. 2 Nevertheless, James’s deliberate indifference claim is flawed in a more basic way: it does 3 not meet the Twombly-Iqbal plausibility standard. James alleges that “Defendant Doe Officers I- 4 IX” acted “with deliberate indifference to [his] serious medical needs by failing to provide him 5 treatment for his broken hand, including an x-ray, treatment, and pain medication.” (ECF No. 5 6 at 38). But James only describes a single interaction with a single prison officer who was 7 overseeing the pill line at the Henderson Detention Center. (Id. at 31). There is not enough 8 factual material in the complaint to permit the court to reasonable infer that ten Doe officers are 9 liable for deliberate indifference to James’s medical needs. It is not clear that discovery would 10 uncover the identities of ten Doe officers either. See Gillespie, 629 F.2d at 642. 11 Thus, James’s ninth claim for relief is dismissed without prejudice. 12 3. Punitive damages 13 James asks for punitive damages in his claims for relief under 42 U.S.C. § 1983. (ECF 14 No. 5 at 33, 34, 35, 38). Punitive damages are not available against municipalities for section 15 1983 claims. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259–60 (1981). Thus, all 16 punitive damage claims against the City of Henderson arising under section 1983 are dismissed 17 with prejudice. 18 C. State law claims 19 James’s fourth, fifth, sixth, seventh, and eighth claims for relief are Nevada state law tort 20 claims. (ECF No. 5 at 34–37). Under Nevada law, “each person who has a claim against any 21 political subdivision of the State arising out of a tort must file the claim within 2 years after the 22 cause of action accrued with the governing body of that political subdivision.” NRS § 41.036(2). 23 Although James is not required to give notice as a condition precedent to filing suit, he must 24 notify the City of Henderson of his claims within two years of their accrual. Id. 25 James’s state law tort claims accrued, at the very latest, on March 6, 2017. That is when 26 the alleged denial of medical attention ended and his hand was x-rayed. (ECF No. 5 at 31). This 27 required James to notify the City of his claims by March 6, 2019. James filed his original

28 less stringent standards than formal pleadings drafted by lawyers.”) (internal quotation marks and citation omitted). 1 complaint on February 15, 2019, and an amended complaint on February 17, 2019. (ECF No. 1 2 at 1). However, the amended complaint was not served on the Henderson defendants until June 3 12, 2019. (ECF No. 5 at 12). 4 Thus, James’s fourth, fifth, sixth, seventh4, and eighth5 claims for relief against the City 5 of Henderson are dismissed with prejudice as time-barred. Hartrim v. Las Vegas Metro. Police 6 Dep't, No. 2:11-CV-00003-RLH, 2011 WL 2690148, at *3 (D. Nev. July 11, 2011) (barring 7 claims against police department and officers because plaintiff did not serve notice of the 8 complaint within two years of accrual); Zaic v. Las Vegas Metro. Police Dep't, No. 2:10-CV- 9 01814-PMP, 2011 WL 884335, at *3 (D. Nev. Mar. 11, 2011) (same). 10 IV. Conclusion 11 Accordingly, 12 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the James’s motion to 13 extend time (ECF No. 29) be, and the same hereby is, DENIED. 14 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the Henderson 15 defendants’ motion to dismiss (ECF No. 5) be, and the same hereby is, GRANTED. 16 IT IS FURTHER ORDERED that the individually named Henderson officers—Lapeer, 17 Lippish, and Nichols—are DISMISSED from this action without prejudice. 18 IT IS FURTHER ORDERED that James’s first and second claims for relief are 19 DISMISSED without prejudice. 20 IT IS FURTHER ORDERED that James’s third and ninth claims for relief are 21 DISMISSED without prejudice. 22

23 4 The court additionally notes that the seventh claim for relief (respondeat superior) is not 24 a cause of action but rather a theory of liability. Okeke v. Biomat USA, Inc., 927 F.Supp.2d 1021, 1029 (D.Nev.2013). This is another ground to warrant dismissal of this claim for relief. 25 26 5 The court additionally notes that the eighth claim for relief (negligence) as pleaded is virtually identical to the fourth claim for relief (negligent hiring, training, supervision, and 27 retention). This is another ground to warrant dismissal of this claim for relief. See M.M. v. Lafayette Selz. Dist., 681 F.3d 1082, 1091 (9th Cir. 2012) (holding a district court did not abuse 28 its discretion in dismissing a claim for relief that was stated in identical terms as another claim for relief). 1 IT IS FURTHER ORDERED that James’s fourth, fifth, sixth, seventh, and eighth claims for relief against the City of Henderson are DISMISSED with prejudice. 3 IT IS FURTHER ORDERED that claims for punitive damages against the City of Henderson under 42 U.S.C. § 1983 are DISMISSED with prejudice. 5 DATED September 28, 2020. 6 5 ee. (tus ©. Atallan UNITED ST ATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge -10-