1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 RAMON MURIC-DORADO, Case No. 2:18-cv-01184-JCM-EJY
5 Plaintiff, ORDER 6 v.
7 LVMPD, et al.,
8 Defendants.
9 10 Before the Court is Plaintiff Ramon Muric-Dorado’s (“Plaintiff”) Motion for Leave to File 11 a Supplemental Complaint Pursuant to Rule 15(d) Fed. R. Civ. P. (ECF No. 24). Plaintiff’s Motion 12 was filed on October 25, 2019. The Court interprets the Motion to seek to add Corrections Officer 13 Bunch in place of John Doe Defendant in Count 13 of his existing Complaint. Defendant further 14 interprets Plaintiff’s Motion as seeking to add Count 27, which is alleged under the First, Eighth, 15 and Fourteenth Amendments to the U.S. Constitution, as a violation of Plaintiff’s Eighth 16 Amendment rights. The Court also notes that Plaintiff states he “has determined that true names 17 and or Badge Numbers for John/Jane Does of Count 12, and Count 13, and Count 18, and Count 18 19” of his Second Amended Complaint. Before ruling on Plaintiff’s Motion, the Court summarizes 19 what claims currently exist and against which Defendants. 20 I. PREVIOUS REVIEWED CLAIMS 21 In its October 1, 2019 Order, the Court found as follows:
22 • Counts 1 through 11: These claims were dismissed with leave to amend. The Court explained that these claims are properly brought through a habeas corpus 23 action and not through a Section 1983 action. The Court sent Plaintiff a copy of the 28 U.S.C. § 2254 form (a federal habeas form) as a courtesy. Plaintiff 24 pointed out that he was a pretrial detainee at the time and could bring an action under Section 2241, which the Court confirmed. However, under any 25 circumstances, these claims could not be bought under 42 U.S.C. § 1983. ECF No. 22 at 5. 26 • Count 12: This claim was dismissed as alleged under the First, Fourth, Fifth, 27 Sixth, and Eighth Amendments of the U.S. Constitution, and under Art. 4, § 17 classification committee appears to have punished plaintiff for 406 days by 1 holding plaintiff in solitary confinement without a hearing.” Id. at 7. Thus, Plaintiff’s Fourteenth Amendment Due Process Claim against the 2 LVMPD/CCDC Doe Committee remains before the Court. Id. at 26. Plaintiff seeks to add names to his pleading of this claim, which the Court will allow. 3 • Count 13: Plaintiff alleged First, Fourth, Fifth, Eighth and Fourteenth 4 Amendment Claims, as well as state law assault and battery claims arising from a series of events detailed at id. at 8-9. The Court interpreted this as a 5 Fourteenth Amendment due-process grievance process claim, a Fourteenth Amendment denial of access to the grievance procedure claim, a Fourteenth 6 Amendment excessive force claim, a Fourteenth Amendment conditions of confinement claim, a First Amendment-retaliation claim, and a state law assault 7 and battery claim.
8 o The Court found Plaintiff stated the following colorable claims: First Amendment retaliation against Defendants Kelsey, 9 Esparza, Kim, and Portello; Fourteenth Amendment denial of access to the grievance 10 procedure against Defendants Kelsey, Mariscal, Esparza, Neumuller, and Maekaelee; 11 Fourteenth Amendment excessive force against Defendants Kelsey, Portello, and Kim; 12 Fourteenth Amendment conditions of confinement against Esparza and Mariscal (for exercise), and Doe Officers (for denial 13 of proper footwear); and, State law assault and battery against Defendants Kelsey, 14 Portello, and Kim.
15 Id. at 8-13. All other allegations arising in Plaintiff’s Count 13 were dismissed. 16 • Counts 14 and 15: The Court dismissed these claims without prejudice as 17 duplicative of Count 13 claims and as stating a claim for privacy in Plaintiff’s cell, which is not a viable claim under the Fourth Amendment. Id. at 13. 18 • Counts 16 and 17: The Court found Plaintiff stated colorable retaliation claims 19 under the First Amendment against Defendants Esparza (Count 16) and Mariscal (Count 17). Id. at 14-15. 20 • Count 18: The Court interpreted this claim as arising under the First, Fourth, 21 Fifth, Sixth, and Fourteenth Amendments and held that Plaintiff stated colorable claims as follows: 22 o A First Amendment retaliation against Defendants Reynald, Newman, Patton, Green, and Doe Officers; 23 o A Fourth Amendment violation for a strip search against Doe Officers; o A Fourteenth Amendment Due Process-property deprivation against 24 Reynald, Newman, Patton, Green, and Doe Officers; and, o A Nevada Due Process claim under Article I, § 8 under the Nevada 25 Constitution against Defendants Reynald, Newman, Patton, Green, and Doe Officers. 26 Id. at 15-17. All other claims alleged under Count 18 were dismissed without 27 prejudice. Id. at 27. 1 • Count 19: The Court interpreted these claims as arising under the First Amendment for retaliation, the Fourteenth Amendment for due process 2 property-deprivation, and the Nevada Constitution for due process property- deprivation. The Court allowed the retaliation claim to go forward against 3 Defendants Shrewberry, Razzo, Whexl, and Doe cell search officers and the federal and state due process property-deprivation claims to go forward against 4 Defendants Shrewberry, Razzo, Whexl, and Doe cell search officers. Id. at 18. All other claims alleged Count 19 were dismissed without prejudice. Id. at 27. 5 • Count 20: The Court dismissed this claim without prejudice. Id. at 19. 6 • Count 21: The Court dismissed this claim without prejudice. Id. at 20. 7 • Count 22: The Court found Plaintiff alleged claims under the First and 8 Fourteenth Amendments, as well as under 42 U.S.C. § 1985(2),(3). The Court dismissed Fourteenth Amendment and Section 1985 claims without prejudice, 9 and permitted the First Amendment retaliation claim to proceed against Doe Officers. Id. at 20. All other claims in count 22 were dismissed without 10 prejudice. Id. at 27.
11 • Count 23: The Court found Plaintiff stated a colorable First Amendment claim for retaliation, on or after December 23, 2017, for adverse action against 12 Defendant Maekaelee, but dismissed Plaintiff’s retaliation claim against Defendant Maekaelee arising from “actions prior to December 23, 2017, 13 because plaintiff has not alleged that he engaged in any protected activity prior to that date . . ..” Id. at 21. 14 • Count 24: The Court found Plaintiff stated a colorable First Amendment 15 retaliation claim against Defendant Neumuller arising from Plaintiff’s December 23, 2017 grievance. The Court dismissed all other claims by Plaintiff 16 against Defendant Neumuller without prejudice. Id. at 22.
17 • Count 25: The Court found Plaintiff’s vicarious liability claim against Clark County failed to state a claim and, therefore, dismissed this claim without 18 prejudice. Id. at 22.
19 • Count 26: The Court found Plaintiff alleged violations of the Eighth and Fourteenth Amendments, “medical malpractice/negligence, and federal 20 criminal statute claims.” Id. at 23. The Court concluded that Plaintiff stated colorable Fourteenth Amendment inadequate medical claims against physician 21 Karla and Naphcare, and dismissed all other claims made by Plaintiff without prejudice, but without leave to amend. Id. at 24. 22 II. DISCUSSION 23 Rule 15(d) allows the Court to permit a party to file “a supplemental pleading setting out 24 any transaction, occurrence, or event that happened after the date of the pleading to be 25 supplemented.” Fed. R. Civ. P. 15(d).
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 RAMON MURIC-DORADO, Case No. 2:18-cv-01184-JCM-EJY
5 Plaintiff, ORDER 6 v.
7 LVMPD, et al.,
8 Defendants.
9 10 Before the Court is Plaintiff Ramon Muric-Dorado’s (“Plaintiff”) Motion for Leave to File 11 a Supplemental Complaint Pursuant to Rule 15(d) Fed. R. Civ. P. (ECF No. 24). Plaintiff’s Motion 12 was filed on October 25, 2019. The Court interprets the Motion to seek to add Corrections Officer 13 Bunch in place of John Doe Defendant in Count 13 of his existing Complaint. Defendant further 14 interprets Plaintiff’s Motion as seeking to add Count 27, which is alleged under the First, Eighth, 15 and Fourteenth Amendments to the U.S. Constitution, as a violation of Plaintiff’s Eighth 16 Amendment rights. The Court also notes that Plaintiff states he “has determined that true names 17 and or Badge Numbers for John/Jane Does of Count 12, and Count 13, and Count 18, and Count 18 19” of his Second Amended Complaint. Before ruling on Plaintiff’s Motion, the Court summarizes 19 what claims currently exist and against which Defendants. 20 I. PREVIOUS REVIEWED CLAIMS 21 In its October 1, 2019 Order, the Court found as follows:
22 • Counts 1 through 11: These claims were dismissed with leave to amend. The Court explained that these claims are properly brought through a habeas corpus 23 action and not through a Section 1983 action. The Court sent Plaintiff a copy of the 28 U.S.C. § 2254 form (a federal habeas form) as a courtesy. Plaintiff 24 pointed out that he was a pretrial detainee at the time and could bring an action under Section 2241, which the Court confirmed. However, under any 25 circumstances, these claims could not be bought under 42 U.S.C. § 1983. ECF No. 22 at 5. 26 • Count 12: This claim was dismissed as alleged under the First, Fourth, Fifth, 27 Sixth, and Eighth Amendments of the U.S. Constitution, and under Art. 4, § 17 classification committee appears to have punished plaintiff for 406 days by 1 holding plaintiff in solitary confinement without a hearing.” Id. at 7. Thus, Plaintiff’s Fourteenth Amendment Due Process Claim against the 2 LVMPD/CCDC Doe Committee remains before the Court. Id. at 26. Plaintiff seeks to add names to his pleading of this claim, which the Court will allow. 3 • Count 13: Plaintiff alleged First, Fourth, Fifth, Eighth and Fourteenth 4 Amendment Claims, as well as state law assault and battery claims arising from a series of events detailed at id. at 8-9. The Court interpreted this as a 5 Fourteenth Amendment due-process grievance process claim, a Fourteenth Amendment denial of access to the grievance procedure claim, a Fourteenth 6 Amendment excessive force claim, a Fourteenth Amendment conditions of confinement claim, a First Amendment-retaliation claim, and a state law assault 7 and battery claim.
8 o The Court found Plaintiff stated the following colorable claims: First Amendment retaliation against Defendants Kelsey, 9 Esparza, Kim, and Portello; Fourteenth Amendment denial of access to the grievance 10 procedure against Defendants Kelsey, Mariscal, Esparza, Neumuller, and Maekaelee; 11 Fourteenth Amendment excessive force against Defendants Kelsey, Portello, and Kim; 12 Fourteenth Amendment conditions of confinement against Esparza and Mariscal (for exercise), and Doe Officers (for denial 13 of proper footwear); and, State law assault and battery against Defendants Kelsey, 14 Portello, and Kim.
15 Id. at 8-13. All other allegations arising in Plaintiff’s Count 13 were dismissed. 16 • Counts 14 and 15: The Court dismissed these claims without prejudice as 17 duplicative of Count 13 claims and as stating a claim for privacy in Plaintiff’s cell, which is not a viable claim under the Fourth Amendment. Id. at 13. 18 • Counts 16 and 17: The Court found Plaintiff stated colorable retaliation claims 19 under the First Amendment against Defendants Esparza (Count 16) and Mariscal (Count 17). Id. at 14-15. 20 • Count 18: The Court interpreted this claim as arising under the First, Fourth, 21 Fifth, Sixth, and Fourteenth Amendments and held that Plaintiff stated colorable claims as follows: 22 o A First Amendment retaliation against Defendants Reynald, Newman, Patton, Green, and Doe Officers; 23 o A Fourth Amendment violation for a strip search against Doe Officers; o A Fourteenth Amendment Due Process-property deprivation against 24 Reynald, Newman, Patton, Green, and Doe Officers; and, o A Nevada Due Process claim under Article I, § 8 under the Nevada 25 Constitution against Defendants Reynald, Newman, Patton, Green, and Doe Officers. 26 Id. at 15-17. All other claims alleged under Count 18 were dismissed without 27 prejudice. Id. at 27. 1 • Count 19: The Court interpreted these claims as arising under the First Amendment for retaliation, the Fourteenth Amendment for due process 2 property-deprivation, and the Nevada Constitution for due process property- deprivation. The Court allowed the retaliation claim to go forward against 3 Defendants Shrewberry, Razzo, Whexl, and Doe cell search officers and the federal and state due process property-deprivation claims to go forward against 4 Defendants Shrewberry, Razzo, Whexl, and Doe cell search officers. Id. at 18. All other claims alleged Count 19 were dismissed without prejudice. Id. at 27. 5 • Count 20: The Court dismissed this claim without prejudice. Id. at 19. 6 • Count 21: The Court dismissed this claim without prejudice. Id. at 20. 7 • Count 22: The Court found Plaintiff alleged claims under the First and 8 Fourteenth Amendments, as well as under 42 U.S.C. § 1985(2),(3). The Court dismissed Fourteenth Amendment and Section 1985 claims without prejudice, 9 and permitted the First Amendment retaliation claim to proceed against Doe Officers. Id. at 20. All other claims in count 22 were dismissed without 10 prejudice. Id. at 27.
11 • Count 23: The Court found Plaintiff stated a colorable First Amendment claim for retaliation, on or after December 23, 2017, for adverse action against 12 Defendant Maekaelee, but dismissed Plaintiff’s retaliation claim against Defendant Maekaelee arising from “actions prior to December 23, 2017, 13 because plaintiff has not alleged that he engaged in any protected activity prior to that date . . ..” Id. at 21. 14 • Count 24: The Court found Plaintiff stated a colorable First Amendment 15 retaliation claim against Defendant Neumuller arising from Plaintiff’s December 23, 2017 grievance. The Court dismissed all other claims by Plaintiff 16 against Defendant Neumuller without prejudice. Id. at 22.
17 • Count 25: The Court found Plaintiff’s vicarious liability claim against Clark County failed to state a claim and, therefore, dismissed this claim without 18 prejudice. Id. at 22.
19 • Count 26: The Court found Plaintiff alleged violations of the Eighth and Fourteenth Amendments, “medical malpractice/negligence, and federal 20 criminal statute claims.” Id. at 23. The Court concluded that Plaintiff stated colorable Fourteenth Amendment inadequate medical claims against physician 21 Karla and Naphcare, and dismissed all other claims made by Plaintiff without prejudice, but without leave to amend. Id. at 24. 22 II. DISCUSSION 23 Rule 15(d) allows the Court to permit a party to file “a supplemental pleading setting out 24 any transaction, occurrence, or event that happened after the date of the pleading to be 25 supplemented.” Fed. R. Civ. P. 15(d). Thus, “‘Rule 15(d) permits the filing of a supplemental 26 pleading which introduces a cause of action not alleged in the original complaint and not in 27 1 existence when the original complaint was filed.’” Cabrera v. City of Huntington Park, 159 F.3d 2 374, 382 (9th Cir.1998) (citation omitted). 3 Motions to file supplemental pleadings under Rule 15(d) are liberally and are appropriate 4 so long as there exists “some relationship ... between the newly alleged matters and the subject of 5 the original action.” Keith v. Volpe, 858 F.2d 467, 474 (9th Cir. 1988). Thus, Rule 15(d) has very 6 broad application and “plainly permits supplements to cover events happening after suit.” Griffin 7 v. Cnty. Sch. Bd. of Prince Edward Cnty., 377 U.S. 218, 227 (1964); see also Keith, 858 F.2d at 8 474. Before final judgment is entered, “[m]otions to amend pursuant to Rule 15(d) should be 9 granted ‘[u]nless undue prejudice to the opposing party will result.’” LaSalvia v. United Dairymen 10 of Ariz., 804 F.2d 1113, 1119 (9th Cir. 1986) (quoting Howey v. United States, 481 F.2d 1187, 11 1190 (9th Cir. 1973)). 12 Amending a complaint under Rule 15(a) is different than supplementing a complaint under 13 Rule 15(d). “The former relate[s] to matters that occurred prior to the filing of the original pleading 14 and entirely replace the earlier pleading; the later deal[s] with events subsequent to the pleading to 15 be altered and merely represent[s] additions to or continuations of the earlier pleadings.” 6A 16 Charles Alan Wright, et al., Federal Practice and Procedure § 1504 (2nd ed. 1990). When a 17 complaint is amended, the original complaint is wholly usurped and disregarded in favor of the 18 new amended complaint. Supplementing a complaint merely adds a layer to the original pleading, 19 and as such, the original, yet changed, complaint remains in effect. 20 Here, Plaintiff seeks to supplement his Second Amended Complaint by naming Doe 21 Defendants in Counts 12, 13, 18, and 19. Plaintiff also seeks to add a new claim the existence of 22 which arose on September 19, 2019, after Plaintiff sought to file his Second Amended Complaint 23 (see ECF No. 15). In this proposed new count, Plaintiff alleges that proposed Defendant Bunch, 24 purposely and knowingly allowed Plaintiff to be placed next to a maximum security prisoner in an 25 elevator; that the maximum security prisoner “violently head butted” Plaintiff causing him a severe 26 injury (a cut to the bone) requiring stitches and resulting in dizziness, nausea, head swelling, a 27 severe black eye, and a mixture of severe pain and numbness throughout his face. ECF No. 24 at 1 (protected custody) inmate and that “max-custody inmate was known to be a maximum security 2 inmate from unit 6-M Maximum Security Unit in C.C.D.C.” Id. at 5. Plaintiff states that 3 Movement Officer Bunch “knew of and disregarded an excessive risk” to his health and safety. 4 Id. 5 A prison official’s “deliberate indifference” to a substantial risk of serious harm to an 6 inmate violates the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 35 (1993); Wilson v. 7 Seiter, 501 U.S. 294 (1991). Lower courts uniformly hold, and the Supreme Court has held that 8 “prison officials have a duty ... to protect prisoners from violence at the hands of other prisoners.” 9 Cortes–Quinones v. Jimenez–Nettleship, 842 F.2d 556, 558 (1977) (internal quotation marks and 10 citation omitted), cert. denied, 488 U.S. 823 (1988). Being violently assaulted in prison is simply 11 not “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes v. 12 Chapman, 452 U.S. 337, 347 (1981). 13 Of course, every injury suffered by one prisoner at the hands of another that does not 14 translate into constitutional liability for prison officials responsible for the victim's safety. Rather, 15 prison official violates the Eighth Amendment only when two requirements are met. First, the 16 deprivation alleged must be, objectively, “sufficiently serious,” Wilson, 501 U.S. at 298; and, a 17 prison official's act or omission must result in the denial of “the minimal civilized measure of life's 18 necessities,” Rhodes, 452 U.S. at 347. The second requirement follows from the principle that 19 “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Wilson, 20 501 U.S. at 297 (internal quotation marks, emphasis, and citations omitted). To violate the Eighth 21 Amendment’s Cruel and Unusual Punishments Clause, a prison official must have a sufficiently 22 culpable state of mind. See id., at 302–303. Ultimately, as stated in Farmer v. Brennan, 511 U.S. 23 825, 837 (1994), the Court held that a prison official cannot be found liable under the Eighth 24 Amendment for denying an inmate humane conditions of confinement unless the official knows 25 of and disregards an excessive risk to inmate health or safety. The official must both be aware of 26 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 27 he must also draw the inference. Id. 1 Plaintiff’s claim asserts facts that meet the pleading requirements of an Eighth Amendment 2 claim. Specifically, Plaintiff alleges detailed facts regarding what Officer Bunch knew and 3 purposely did to place Plaintiff at excessive risk of substantial harm. Plaintiff also asserts details 4 regarding what Officer Bunch deliberately did not do when Plaintiff was attacked and seriously 5 injured. 6 III. CONCLUSION 7 For the foregoing reasons, 8 IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File a Supplemental 9 Complaint Pursuant to Fed. R. Civ. P. 15(d) (ECF No. 24) is GRANTED. 10 IT IS FURTHER ORDERED that the Court’s October 1, 2019 Order regarding claims in 11 Plaintiff’s Second Amended Complaint remains in effect and all claims that survived that Order 12 remain operative. 13 IT IS FURTHER ORDERED that Plaintiff’s Second Amended Complaint is supplemented 14 to include Count 27 against Officer Bunch in his individual capacity for an alleged violation of 15 Plaintiff’s Eighth Amendment Rights. 16 IT IS FURTHER ORDERED that Plaintiff’s Second Amended Complaint is supplemented 17 to add Officer Bunch to Plaintiff’s Count 13 for Fourteenth Amendment conditions of confinement 18 for denial of proper footwear. 19 IT IS FUTHER ORDERED that within 30 days of the date of this Order Plaintiff shall file 20 a supplemental pleading identifying the Defendants' names and badge numbers, to the extent 21 known, that he wishes to add to Counts 12, 18, and 19. 22 IT IS FURTHER ORDERED that the Clerk of Court SHALL issue a summons for Officer 23 Bunch and deliver the same to the U.S. Marshal for service. The Clerk of Court SHALL also 24 send a copy of this Order together with a copy of Plaintiff’s Second Amended Complaint (ECF 25 No. 15) to the U.S. Marshal for service on Defendant Bunch. 26 IT IS FURTHER ORDERED that the Clerk of Court SHALL send Plaintiff a USM-285 27 form. Plaintiff shall have thirty (30) days within which to furnish the U.S. Marshal the required 1 IT IS FURTHER ORDERED that because Defendants Naphcare Incorporated, Karla, Kim, 2 Neumuller, Shrewberry, Green, Razzo, Reynald, and Whexl were not effectively served because 3 they could not be located, or are either no longer employed by or associated with LVMPD or CCDC, 4 Plaintiff shall have thirty (30) days from the date of this Order to file a request with the Court 5 providing as much detail as possible regarding where and how service on each of the unserved 6 Defendants may be accomplished. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, 7 service must be accomplished within 180 days from the date Plaintiff’s Complaint was filed. 8 DATED THIS 15th day of November, 2019. 9
10 ELAYNA J. YOUCHAH 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27