Melnek v. Las Vegas Metropolitan Police Department

Opinion

1 AARON D. FORD Attorney General 2 COURTNEY E. LEVERTY Deputy Attorney General 3 Nevada Bar No. 8544 State of Nevada 4 Office of the Attorney General 5420 Kietzke Lane, Suite 202 5 Reno, Nevada 89511 Telephone: (775) 687-2100 6 Facsimile: (775) 688-1822 cleverty@ag.nv.gov 7

8 Attorneys for Defendants Department of Health and Human Services 9 Division of Public and Behavioral Health, Cody Phinney and Jo Malay 10 11 UNITED STATES DISTRICT COURT

12 DISTRICT OF NEVADA

13 TROY MELNEK, Case No.: 2:23-cv-01303-GMN-MDC

14 Plaintiff, STIPULATION AND ORDER OF 15 vs. DISMISSAL OF THE DIVISION OF PUBLIC AND BEHAVIORAL HEALTH 16 LAS VEGAS METROPOLITAN POLICE (DPBH), AND CODY PHINNEY AND DEPARTMENT, JOSEPH LOMBARDO, JO MALAY, IN THEIR OFFICIAL 17 DIVISION OF PUBLIC AND CAPACITIES, WITH PREJUDICE BEHAVIORAL HEALTH, DEPARTMENT 18 OF HEALTH AND HUMAN SERVICES, CODY PHINNEY, JO MALAY, and DOES I 19 – V, and ROE CORPORATIONS I – V, inclusive, 20 Defendants. 21 22 THE FOLLOWING IS HEREBY STIPULATED by and between Defendant 23 DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF PUBLIC AND 24 BEHAVIORAL HEALTH (“DPBH”), a political subdivision of the State of Nevada, CODY 25 PHINNEY (“PHINNEY”), in her official capacity as Administrator of DPBH, and JO 26 MALAY (“MALAY”) in her official capacity as Deputy Administrator of DPBH (collectively 27 1 referred to as “STATE DEFENDANTS”) and Plaintiff, TROY MELNEK (“MELNEK”), by 2 and through their respective attorneys of record. 3 1. In MELNEK’S Second Amended Complaint, filed on February 5, 2025, against 4 State Defendants, MELNEK brought four causes of action against STATE 5 DEFENDANTS: (1) a Due Process violation pursuant to the Fourteenth 6 Amendment and the Nevada Constitution for failure to make a bed available, (2) 7 a Cruel And Unusual Punishment violation, (3) a Due Process violation pursuant 8 to the Fourteenth Amendment and the Nevada Constitution for failure to convey 9 MELNEK for treatment; and (4) an Equal Protection violation pursuant to the 10 Fourteenth Amendment and the Nevada Constitution. 11 2. In the Court’s order of May 10, 2024, the Court found MELNEK’S Complaint 12 against DPBH, a Nevada State agency, immune from suit for money damages 13 pursuant to the Eleventh Amendment; and as such, when MELNEK realleged 14 DPBH again in its Amended Complaint on January 15, 2025, the Court dismissed 15 MELNEK’S 42 U.S.C. §1983 claim against DPBH, with prejudice. ECF 69 5:17- 16 21. For those reasons, the parties agree to dismiss the constitutional violations 17 brought in MELNEK’S Second Amended Complaint against DPBH with 18 prejudice. 19 3. On January 15, 2025, the Court dismissed PHINNEY and MALAY in their 20 official capacities, with prejudice, finding MELNEK’S Amended Complaint, 21 “lump[ed] together… multiple defendants in one broad allegation failing to 22 satisfy the notice requirement of Rule 8(a)(2). “ECF 69 6:10-17; (citing Gen-Probe, 23 Inc. v. Amoco Corp., Inc., 926 F. Supp. 948, 961 (S.D. Cal. 1996) (also citing 24 Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988). The Court found 25 MELNEK’S Amended Complaint contained only one allegation specific to 26 PHINNEY and MALAY – an allegation stating their job titles at DPBH – and did 27 not specifically identify “what action each Defendant took that caused Plaintiff’s 1 harm, without resorting to generalized allegations against Defendants as a 2 whole.” ECF 69, 6: 17-23 (citing In re iPhone Application Litig., No. 11-MD-02250- 3 LHK, 2011 WL 4403963, at *3 (N.D. Cal. Sept. 20, 2011). 4 4. On January 15, 2025, the Court also found MELNEK’S Amended Complaint 5 lumped all STATE DEFENDANTS in his causes of action for cruel and unusual 6 punishment and equal protection violations. Therefore, the parties agree to 7 dismiss the constitutional violations brought in MELNEK’S Second Amended 8 Complaint against PHINNEY and MALAY, in their official capacities, with 9 prejudice. 10 IT IS HEREBY STIPULATED by and between the parties, hereto, by their 11 respective attorneys of records as follows: 12 1. MELNEK agrees, based on the Court’s prior orders, that all claims for money 13 recovery against DPBH as set forth in the Second Amended Complaint be 14 dismissed. 15 2. MELNEK agrees, based on the Court’s prior orders, that all claims for money 16 recovery against PHINNEY and MALAY in their official capacities, as set forth 17 in the Second Amended Complaint, be dismissed. 18 3. MELNEK agrees to file a motion to amend the caption to reflect the proper 19 STATE DEFENDANTS remaining in the case. 20 4. MELNEK’S state law claims breach of contract, negligent infliction of emotional 21 distress, and intentional infliction of emotional distress are not addressed in this 22 Stipulation. 23 … 24 … 25 … 26 27 1 5. MELNEK’s claims against PHINNEY and MALAY in their individual capacities 2 are not addressed in this Stipulation. 3 || DATED this 11th day of March 2025. DATED this 11th day of March 2025. 4 AARON D. FORD LAW OFFICE OF DAVID SAMPSON 5 || Attorney General 6 || By: /s/ Courtney E. Leverty By: /s/ David F. Sampson 7 COURTNEY E. LEVERTY DAVID F. SAMPSON, ESQ. 3 ORDER IT IS SO ORDERED: MELNEK’S 42 U.S.C. §1983 claim against DPBH is DISMISSED, with prejudice. The 42 U.S.C. §1983 claim against Phinney and Malay in their official capacities is DISMISSED, with prejudice. DATED this _1! _ day of March 2025. i, ii 14 GLORJA IM. NAVARRO, District Judge UNI STATES DISTRICT COURT

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1 CERTIFICATE OF SERVICE 2 I certify that I am an employee of the State of Nevada, Office of the Attorney General, 3 and that on the 11th day of March 2025, I filed the foregoing STIPULATION AND 4 ORDER OF DISMISSAL OF THE DIVISION OF PUBLIC AND BEHAVIORAL 5 HEALTH (DPBH), AND CODY PHINNEY AND JO MALAY, IN THEIR OFFICIAL 6 CAPACITIES, WITH PREJUDICE and served via this Court’s Electronic Filing System 7 to the following interested parties: 8 ROBERT W. FREEMAN 9 Robert.Freeman@lewisbrisbois.com E. MATTHEW FREEMAN 10 Matt.Freeman@lewisbrisbois.com LEWIS BRISBOIS BISGAARD & SMITH LLP 11 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 12 DAVID F. SAMPSON 13 LAW OFFICE OF DAVID SAMPSON 630 South Third Street 14 Las Vegas, Nevada 89101 David@davidsampsonlaw.com 15

16 /s/ Gina Hinds 17 AG Legal Secretary 18

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