Melnek v. Las Vegas Metropolitan Police Department

• Court: District Court, D. Nevada
• Decided: January 15, 2025
• Docket: 2:23-cv-01303
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 TROY MELNEK, 4 Plaintiff, Case No.: 2:23-cv-01303-GMN-MDC 5 vs. ORDER ON MOTIONS TO DISMISS 6 LAS VEGAS METROPOLITAN POLICE 7 DEPARTMENT, et. al.,

8 Defendants. 9 Pending before the Court are three Motions to Dismiss. One of the Motions to Dismiss, 10 (ECF No. 32), is filed by Defendants Las Vegas Metropolitan Police Department (“LVMPD”) 11 and Joseph Lombardo, (collectively “LVMPD Defendants”). Two of the Motions to Dismiss 12 (ECF Nos. 33, 50) are filed by Defendants Division of Public and Behavioral Health of the 13 Department of Health and Human Services, Jo Malay, and Cody Phinney, (collectively “DPBH 14 Defendants”). Plaintiff Troy Melnek filed Responses, (ECF Nos. 35, 38, 51), and the 15 Defendants filed Replies (ECF No. 39, 40, 55). 16 For the following reasons, the Court DENIES the LVMPD Defendants’ Motion to 17 Dismiss, (ECF No. 32), and GRANTS the DPBH Defendants’ Motions to Dismiss, (ECF Nos. 18 33, 50). 19 I. BACKGROUND 20 This case arises out of Defendants’ alleged failure to timely transfer Plaintiff to a 21 psychiatric hospital after he was found incompetent to stand trial in state court. (See generally 22 First Am. Compl. (“FAC”), ECF No. 31). The state court filed an Order of Commitment on 23 June 25, 2022, requiring the Sheriff to convey Plaintiff “forthwith” to the custody of DPBH 24 Defendants. (Id. ¶¶ 13–15). Plaintiff alleges that DPBH had seven days to make a bed 25 available so that he could receive treatment, but Defendants did not timely transfer him from 1 the Clark County Detention Center to one of the two forensic psychiatric hospitals. (Id. ¶¶ 19– 2 25). Plaintiff thus remained in custody for 82 days before being transferred. (Id. ¶¶ 13–14). 3 The Court granted the Defendants’ first Motions to Dismiss but provided Plaintiff with 4 21 days to file an Amended Complaint against Defendants LVMPD, Sheriff Lombardo, 5 Phinney, and Malay. (See generally Order Granting Mots. Dismiss, ECF No. 30). Plaintiff 6 filed the FAC, alleging a Fourteenth Amendment Due Process violation brought under 7 42 U.S.C. § 1983 against Defendants, and Defendants again filed Motions to Dismiss, (ECF 8 Nos. 32–33).1 9 After those motions were fully briefed, the Court ordered this case to be consolidated 10 with 2:24-cv-01271-CDS-MDC because Plaintiff brought two cases against the same 11 Defendants for the same incident. (See generally Consolidation Order, ECF No. 45). In the 12 case that was consolidated with this one, 2:24-cv-01271-CDS-MDC, Plaintiff brought four 13 claims against all Defendants: (1) a Due Process violation pursuant to the Fourteenth 14 Amendment and the Nevada Constitution for failure to make a bed available, (2) a Cruel and 15 Unusual Punishment violation, (3) a Due Process violation pursuant to the Fourteenth

16 Amendment and the Nevada Constitution for failure to convey Plaintiff for treatment, and (4) 17 an Equal Protection violation pursuant to the Fourteenth Amendment and the Nevada 18 Constitution. The DPBH Defendants moved to dismiss the Complaint filed in that case. 19 (Second DPBH Mot. Dismiss, ECF No. 50). Plaintiff also filed a Motion for Leave to Amend 20 his Complaint, (ECF No. 56), which the Magistrate Judge denied without prejudice, (ECF No. 21 60). The Court will thus resolve the two pending Motions to Dismiss the FAC in this case and 22 the Motion to Dismiss the Complaint filed in the closed consolidated case. 23

24 1 Paragraph 1 of Plaintiff’s FAC, under the “Jurisdiction” heading, states that the Court also has supplemental jurisdiction 25 over Plaintiff’s state law claims for breach of contract, negligent infliction of emotional distress, and intentional infliction of emotional distress. (FAC ¶ 1). However, the claims are never mentioned again, and Plaintiff’s Response brief does not dispute Defendants’ argument that they should be dismissed. These claims are thus DISMISSED with leave to amend. 1 II. LEGAL STANDARD 2 Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon 3 which relief can be granted. Fed. R. Civ. P. 12(b)(6). A pleading must give fair notice of a 4 legally cognizable claim and the grounds on which it rests, and although a court must take all 5 factual allegations as true, legal conclusions couched as factual allegations are insufficient. Bell 6 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, Rule 12(b)(6) requires “more 7 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will 8 not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual 9 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 10 Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial 11 plausibility when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard 13 “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. 14 III. DISCUSSION 15 Restorative treatment for incapacitated criminal defendants is a Fourteenth Amendment

16 Due Process right. See Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003) 17 (holding that incapacitated defendants “have liberty interests in freedom from incarceration and 18 in restorative treatment”). When a court finds a defendant incompetent, “the judge shall order 19 the sheriff to convey the defendant forthwith, together with a copy of the complaint, the 20 commitment and the physicians’ certificate, if any, into the custody of the Administrator or the 21 Administrator’s designee for detention and treatment at a division facility that is secure.” NRS 22 178.425(1). The Court begins with the Motion to Dismiss filed by the LVMPD Defendants. 23 A. Motion to Dismiss by LVMPD Defendants (ECF No. 32) 24 In the Court’s first Order granting dismissal of the LVMPD Defendants, the Court found 25 that the Complaint lacked factual allegations regarding the LVMPD Defendants and made no 1 mention of a violation by them. (Order Granting Mots. Dismiss 3:17–4:13). The LVMPD 2 Defendants argued that they should be dismissed with prejudice because, as part of their Motion 3 for Summary Judgment, they attached the declaration of their LVMPD Detention Transition 4 Services Coordinator who stated that Plaintiff was medically screened and cleared within five 5 days of the Court’s competency order. (Id. 5:10–17). But because she did not clarify that 6 Plaintiff was timely placed on a transfer list, or on which date LVMPD alerted DPBH that 7 Plaintiff had been medically cleared, the Court was unable to determine that the LVMPD 8 Defendants were not the proper defendants in this case or grant summary judgment. (Id.). 9 Thus, the Court granted dismissal with leave to amend. (Id. 5:18–20). 10 In the FAC, Plaintiff now alleges that the LVMPD Defendants had a duty to transfer him 11 “forthwith” to a psychiatric hospital, and that they breached this duty by causing him to remain 12 incarcerated at Clark County Detention Center for 82 days. (FAC ¶¶ 13–16). He also alleges 13 that upon receipt of the competency order, Defendants have a duty to review an inmate’s 14 information and direct them to one of two facilities. (Id. ¶ 22). The LVMPD Defendants now 15 move for dismissal based on a different attached Declaration stating that Plaintiff was placed on

16 a waitlist to be transferred, and that they promptly notified DPBH of Plaintiff’s status only 17 three days after receiving notice of the Competency Order. (See generally LVMPD Mot. 18 Dismiss, ECF No. 32). 19 As Plaintiff points out, however, the LVMPD Defendants are currently moving to 20 dismiss, not moving for summary judgment. The LVMPD Defendants previously moved for 21 both dismissal and summary judgment. Review on a motion pursuant to Rule 12(b)(6) is 22 normally limited to the complaint itself. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 23 2001). It would be improper for the Court to consider the attached Declaration and additional 24 evidence without converting this motion to dismiss into a motion for summary judgment and 25 giving Plaintiff an opportunity to respond. See United States v. Ritchie, 342 F.3d 903, 909 (9th 1 Cir. 2003). Plaintiff also requests additional discovery to assess whether the assertions made in 2 the Declaration are true. (Resp. to LVMPD Mot. Dismiss 12:14–20, ECF No. 35). As of the 3 time Plaintiff filed his Response brief, he still had six and a half months left until the close of 4 discovery on January 13, 2025. The Court finds this request to be reasonable and thus DENIES 5 the LVMPD Defendants’ Motion to Dismiss but notes that the LVMPD Defendants may move 6 for summary judgment at the appropriate time and again provide the evidence attached to their 7 Motion to Dismiss and Reply briefs. 8 B. Motions to Dismiss by DPBH Defendants (ECF Nos. 33, 50) 9 The DPBH Defendants move to dismiss Plaintiff’s Section 1983 claim for a Fourteenth 10 Amendment Due Process violation against DPBH because the Court has already dismissed it 11 with prejudice. (DPBH First Mot. Dismiss 2:10–12, ECF No. 33). They also move to dismiss 12 the claim against Defendants Malay and Phinney in their official capacities and argue that it is 13 barred as a claim for money damages against the State. (Id. 2:10–17). And in their second 14 Motion to Dismiss the Complaint in the case previously assigned to Judge Silva, they argue that 15 the Complaint fails to specify factual allegations against DPBH, Phinney, or Malay. (See

16 generally DPBH Second Mot. Dismiss, ECF No. 50). 17 Defendants are correct that the Court previously dismissed DPBH, a Nevada state 18 agency, because it is immune from a suit for money damages pursuant to the Eleventh 19 Amendment. (Order Granting Mots. Dismiss 6:12–7:2). Because Plaintiff did not address 20 Defendant’s dismissal argument in his Response brief, and because he requests monetary relief 21 in the FAC, the Court dismisses the Section 1983 claim against DPBH with prejudice. 22 The Court also previously dismissed the claim against Phinney and Malay with leave to 23 amend because although they were mentioned in the “Parties” section of the Complaint, 24 Plaintiff did not include any factual allegations regarding how they allegedly violated his right 25 to due process. (Order Granting Mots. Dismiss 7:3–25). Plaintiff amended his Complaint to 1 allege that Defendants Phinney and Malay, along with the other Defendants, failed to make a 2 bed available within seven days of the state court’s incompetency order. (See generally FAC). 3 Defendants move to dismiss the claim brought against them in their official capacities. 4 (DPBH First Mot. Dismiss 6:6–7:15). State officials sued for money damages in their official 5 capacities are not ‘persons’ within the meaning of § 1983, because the suit is no different than a 6 suit against the state, and thus barred by the Eleventh Amendment. Doe v. Lawrence Livermore 7 Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997). Plaintiff does not refute this, but rather clarifies 8 that he is bringing his claim against Phinney and Malay in their individual capacities. (See 9 Resp. to DPBH First Mot. Dismiss 9:26–10:28). 10 However, as Defendants point out in both Motions to Dismiss, Plaintiff still fails to 11 allege specific facts as to how Phinney and Malay were involved in the violation of his rights. 12 He broadly lumps together all Defendants, stating that they failed to transfer or accept him into 13 the medical facility, but this does not satisfy the notice requirement of Rule 8. As the Court 14 explained in its previous order, a complaint which “lump[s] together . . . multiple defendants in 15 one broad allegation fails to satisfy [the] notice requirement of Rule 8(a)(2).” Gen–Probe, Inc.

16 v. Amoco Corp., Inc., 926 F. Supp. 948, 961 (S.D. Cal. 1996) (citing Gauvin v. Trombatore, 17 682 F. Supp. 1067, 1071 (N.D. Cal. 1988)). If Plaintiff wishes to include Phinney and Malay in 18 this suit, he must specifically identify “what action each Defendant took that caused Plaintiffs’ 19 harm, without resort to generalized allegations against Defendants as a whole.” In re iPhone 20 Application Litig., No. 11–MD–02250–LHK, 2011 WL 4403963, at *3 (N.D. Cal. Sept. 20, 21 2011)). Currently, the only allegation in the FAC specific to Phinney and Malay is their job 22 title at DPBH. Simply being employed by DPBH, without more, is not a sufficient basis on 23 which to premise the claim on. The Court thus DISMISSES Phinney and Malay but provides 24 one more opportunity for Plaintiff to file a Second Amended Complaint specifying their 25 1 violative conduct in this suit, in their individual capacity, without lumping them together with 2 all other Defendants. 3 Lastly, the DPBH Defendants argue that Plaintiff failed to state a claim for cruel and 4 unusual punishment or an equal protection violation in the Complaint he filed in the closed and 5 consolidated case previously before Judge Silva. (DPBH Second Mot. Dismiss 6:8–9:9). That 6 Complaint suffers from the same deficiency as the FAC in this case. Plaintiff’s factual 7 allegations lump all Defendants together, and these two additional causes of action include no 8 supplementary facts to support them. Therefore, the Court also DISMISSES these claims but 9 allows Plaintiff leave to amend to include additional facts. 10 V. CONCLUSION 11 IT IS HEREBY ORDERED that the LVMPD Defendants’ Motion to Dismiss, (ECF 12 No. 32), is DENIED. 13 IT IS FURTHER ORDERED that the DPBH Defendants’ Motions to Dismiss, (ECF 14 Nos. 33, 50), are GRANTED. The Section 1983 claim against DPBH is DISMISSED, with 15 prejudice. The Section 1983 claim against Phinney and Malay in their official capacity is

16 DISMISSED, with prejudice. However, the Section 1983 claim against Phinney and Malay in 17 their individual capacity is DISMISSED, without prejudice and with leave to amend. 18 Plaintiff’s state law claims for breach of contract, negligent infliction of emotional 19 distress, and intentional infliction of emotional distress are DISMISSED, with leave to amend. 20 IT IS FURTHER ORDERED that Plaintiff’s Motion for Additional Discovery, (ECF 21 No. 52), is DENIED AS MOOT because the Court is permitting Plaintiff to file a Second 22 Amended Complaint. 23 IT IS FURTHER ORDERED that Plaintiff may have 21 days from the date of this 24 Order to file a Second Amended Complaint including all claims he wishes to assert against 25 Defendants LVMPD, Sheriff Lombardo, and DPBH employees Phinney and Malay in their 1 |} individual capacities. Plaintiff is reminded that any claims originally asserted June 2024 in the 2 || state court case A-24-895306-C which was removed to federal court, assigned to Judge Silva as 3 || 2:24-cv-01271, and consolidated into this case must be replead in the Second Amended 4 || Complaint or else be considered waived. 5 6 DATED this_!>__ day of January, 2025. Up,

9 Gloria } avarro, District Judge UNITED STATES DISTRICT COURT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Page 8 of 8