Muric-Dorado v. LVMPD

• Court: District Court, D. Nevada
• Decided: January 20, 2021
• Docket: 2:18-cv-01184
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 RAMON MURIC-DORADO, Case No. 2:18-cv-01184-JCM-EJY

5 Plaintiff,

6 v. ORDER

7 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al, 8 Defendants. 9 10 Before the Court is Plaintiff’s Motion to Issue Summons’ [sic] to Newly Identified Named 11 Defendants Subject to Service of Process (ECF No. 110). The Court has considered Plaintiff’s 12 Motion, Defendants’ Opposition (ECF No. 111), and Plaintiff’s Reply (ECF No. 112). 13 I. Background 14 Plaintiff’s Motion seeks to name 42 newly identified individual defendants in place of Doe 15 defendants named in his Second Amended Complaint (“SAC”). ECF No. 110 at 1-3. Plaintiff also 16 reports that Dr. Larry Williamson, a now dismissed defendant, is allegedly working for Wellpath 17 providing healthcare to inmates at Clark County Detention Center (“CCDC”). In opposition to 18 Plaintiff’s Motion, Defendants state that Plaintiff seeks to bring claims against ten previously 19 dismissed defendants,1 Plaintiff’s Motion is procedurally deficient because it is not stated as a 20 motion to substitute true names of Doe defendants or as a motion to amend Plaintiff’s SAC, and 21 Plaintiff fails to identify which names are to be substituted for which Doe defendants. ECF No. 111 22 at 2-6. Defendants also point out that the Court previously dismissed Plaintiff’s Counts 1-11, 14, 23 15, 20, 21, and 25. ECF No. 22. Defendants explain that Plaintiff’s Counts 16, 17, 22, and 23 were 24 permitted to proceed as to the then-named defendants only. Id. Only Counts 12, 13, 18, and 19 25 were allowed to proceed against any Doe defendant. Id. Finally, Defendants correctly state that the 26 only other Count was Count 26, which is proceeding against NaphCare, with individual defendant, 27 1 Dr. Karla, dismissed. ECF No. 93. In Plaintiff’s Reply he attempts to identify which newly 2 identified defendant is to be substituted for a Doe defendant in various claims. ECF No. 112. 3 Eliminating Plaintiff’s attempt to name individuals previously dismissed or add individuals 4 to claims the Court denied Plaintiff permission to amend, the number of newly identified defendants 5 is reduced from 42 to 32. Id. at 5-6. With respect to the remaining 32 named defendants, Plaintiff 6 seeks to add: (i) nine defendants to Count 12 (David Gonzalez for John Doe 25; D.G.S.I.U. Sergeant 7 Steven Albright for John Doe 27; D.G.S.I.U. Sergeant Epeneter for John Doe 28; D.G.S.I.U. 8 Sergeant Ronald Rodriguez for an unknown John Doe; D.G.S.I.U. Sergeant Oscar Martinez for an 9 unknown John Doe; D.G.S.I.U. Sergeant David Gonzalez for an unknown John Doe; Classification 10 Sergeant Tanya Vai for an unknown Jane Doe; Classification Sergeant Darin Hardin for an unknown 11 John Doe; and, Jonathan Clark for an unknown John Doe); (ii) sixteen defendants to Count 13 12 (Dustin Kim for John Doe 19; Sergeant Michael Chambers for John Doe 21; Qua Patrick for John 13 Doe 24; Mariesa Morrelli for Jane Doe 43; Michael Morris for John Doe 44; Steven White for John 14 Doe 45; Jonathan Clark for an unknown John Doe; Leonel Verduzco for an unknown John Doe; 15 James Jackson for an unknown John Doe; Kaluna Aki for an unknown John Doe; Lt. Lusch for an 16 unknown John Doe; Sergeant Batu for an unknown John Doe; Sergeant Lebaron for an unknown 17 John Doe; Sergeant Hightower for an unknown John Doe; Sergeant Wallace for an unknown John 18 Doe; and, Jared Senior for an unknown John Doe); (iii) eight defendants to Count 18 (Bernot for 19 John Doe 1; Walter Hampson for John Doe 2; Mitchell Green for John Doe 12; Lt. Lusch for an 20 unknown John Doe ; Sergeant Batu for an unknown John Doe; Sergeant Lebaron for an unknown 21 John Doe; Sergeant Hightower for an unknown John Doe; and, Sergeant Wallace for an unknown 22 John Doe); (iv) five defendants to Count 19 (Lt. Lusch for an unknown John Doe; Sergeant Batu for 23 an unknown John Doe; Sergeant Lebaron for an unknown John Doe; Sergeant Hightower for an 24 unknown John Doe; and, Sergeant Wallace for an unknown John Doe); and (v) two defendants to 25 Count 22 (Banagan for John Doe 22, and Walford for John Doe 23).

27 1 II. Discussion 2 Setting aside Plaintiff’s failure to name his present Motion properly, the Court finds Plaintiff 3 seeks to substitute Doe defendants for individuals he has now identified. Thus, Defendants’ 4 opposition to Plaintiff’s Motion based on a procedural failing is not well taken. However, and to the 5 contrary, to the extent Plaintiff seeks to substitute Doe defendants for defendants previously 6 dismissed and/or to add defendants to causes of action the Court did not grant Plaintiff the ability to 7 do, Defendants’ opposition is meritorious and Plaintiff’s Motion is denied. 8 Further, to the extent that Plaintiff fails to identify which Doe defendant a named defendant 9 is to substitute for, the Court finds as follows: 10 • Count 12 alleges that the “CCDC/LVMPD classification committee members held plaintiff 11 in solitary confinement for 406 days without a classification hearing.” ECF No. 22 at 6. As 12 the Court previously did, construing this claim as a due process-disciplinary segregation that 13 was allowed to proceed against the LVMPD/CCDC Doe Classification committee members, 14 Plaintiff identifies Classification Sergeant Tanya Vai and Classification Sergeant Darin 15 Hardin as proper Defendants in substitution for Doe defendants. The Court will grant 16 Plaintiff’s Motion and allow Count 12 to proceed against previously named and these two 17 newly identified Defendants. The Court could not readily locate any other Doe defendants 18 named in Count 12 as properly added to Count 12.2 19 • Count 13 alleges a Fourteenth Amendment due process-grievance violation, First 20 Amendment retaliation, a Fourteenth Amendment denial of access to the grievance 21 procedure, a Fourteenth Amendment excessive force, state law assault and battery, and a 22 Fourteenth Amendment conditions of confinement claim. ECF No. 22 at 10. The Court 23 allowed Plaintiff to proceed on a First Amendment retaliation claim, but only as to 24 Defendants Kelsey, Esparza, Kim, and Portello. The Court allowed Plaintiff’s Denial of 25 Access to the Grievance Process claim to proceed as to Defendants Kelsey, Mariscal, 26 Esparza, Neumuller, and Maekaelee. Id. at 11. The Court also allowed Plaintiff’s Fourteenth

27 2 Plaintiff’s SAC (ECF No. 15) references Does # 25 -1000 on page 14, stating general constitutional violation. 1 Amendment Excessive Force and state law assault and battery claim to proceed against 2 Defendants Kelsey, Portello, and Kim. Id. at 12. Plaintiff’s Fourteenth Amendment 3 Conditions of Confinement claim was allowed to proceed against Defendants Esparza, 4 Mariscal and Doe officers who denied Plaintiff proper footwear. Id. at 13. Of the sixteen 5 new defendants identified by Plaintiff as replacements for Doe defendants, Plaintiff does not 6 identify a single one as involved in the denial of Plaintiff’s proper footwear. ECF No. 112 7 at 5-6. The Court finds the representations by Plaintiff insufficient to state claims against 8 these sixteen individuals as Plaintiff fails to state how each or any was involved in the 9 constitutional violation he alleges. “Although a pro se plaintiff is allowed leeway in drafting 10 his or her complaint, the defendants are entitled to understand the claims brought against 11 them.” Todd v. Davis, Case No. 92-890-FR,1993 WL 369275, at *1 (D. Ore. Sept. 16, 1993). 12 Because Plaintiff fails to provide sufficient information to allow the sixteen newly identified 13 defendants to understand the claims brought against them, the Court denies Plaintiff’s request 14 to substitute these individuals in for Doe defendants without prejudice. 15 • Count 18 alleges First, Fourth, Fifth, Sixth, and Fourteenth Amendment violations, which 16 the Court interpreted as a First Amendment retaliation claim, a Fourth Amendment strip 17 search claim, a Fourteenth Amendment due process-property deprivation claim, and a 18 Nevada Constitution due process-property deprivation claim. ECF No. 22 at 15-18. The 19 Court allowed each of these claims to proceed against named and Doe defendants. Id. As is 20 stated above with respect to Count 13, Plaintiff does not explain or provide any information 21 regarding how any of the 18 newly identified defendants were involved in any of the 22 constitutional violations alleged. For this reason, the Court denies Plaintiff’s request to 23 substitute these individuals in for Doe defendants without prejudice. 24 • Count 19 was interpreted by the Court as stating Frist Amendment retaliation, Fourteenth 25 Amendment due process-property deprivation, and Nevada Constitution due process- 26 property deprivation claims. Id. at 18. The Court found each claim could proceed for the 27 same reasons it found Plaintiff’s claims asserted in Count 18 could proceed. Id. But, Plaintiff 1 defendants participated in conduct that allegedly violated Plaintiff’s constitutional rights. 2 For this reason, the Court denies Plaintiff’s request to substitute these individuals in for Doe 3 defendants without prejudice. 4 • Count 22 states Does officers picked up a grievance Plaintiff filed, after which the officers 5 conspired and committed adverse actions against Plaintiff. These summarized facts were 6 sufficient to state a “colorable retaliation claim against Doe Officers” under the First 7 Amendment. ECF No. 22 at 20 and 27. Plaintiff now identifies two officers involved in the 8 alleged retaliatory activity. The Court will allow the claims against these two officers to 9 proceed as stated below in the Court’s Order. 10 III. Order 11 IT IS HEREBY ORDERED that Plaintiff’s Motion to Issue Summons’ [sic] to Newly 12 Identified Named Defendants Subject to Service of Process (ECF No. 110) is GRANTED in part 13 and DENIED in part. 14 IT IS FURTHER ORDERED that Classification Sergeant Tanya Vai and Classification 15 Sergeant Darin Hardin shall be substituted in for Doe defendants in Count 12 of Plaintiff’s Second 16 Amended Complaint. 17 IT IS FURTHER ORDERED that Defendants Banagan and Walford shall be substituted in 18 for Doe defendants in Count 22 of Plaintiff’s Second Amended Complaint for purposes of allowing 19 Plaintiff to pursue his First Amendment retaliation claim only. 20 IT IS FURTHER ORDERED that counsel for LVMPD shall file a notice with the Court 21 within seven (7) days of the date of this Order indicating whether it will accept service of process 22 for Defendants Vai, Hardin, Banagan, and Walford. If counsel for LVMPD cannot accept service 23 for any of the four newly identified Defendants for any reason, counsel shall file, under seal, the 24 last known addresses and, if appropriate, correct and full names, for each Defendant for whom 25 service is not accepted. Counsel for LVMPD shall file such information within ten (10) days of the 26 date of this Order. 27 IT IS FURTHER ORDERED that Plaintiff’s Motion to Issue Summons’ [sic] is otherwise 1 IT IS FURTHER ORDERED that Plaintiff shall have one opportunity to file a second motic 2 || to substitute the true names of Doe defendants in Counts 13, 18, and 19 only. If Plaintiff choos 3 || to file a second motion to substitute the true names for Doe defendants, Plaintiff must do so no lat 4 || than 30 days from the date of this Order. Plaintiff's second motion to substitute names mu 5 || succinctly and clearly allege sufficient facts identifying the action or inaction in which ea 6 || proposed defendant allegedly engaged constituting the basis for his constitutional claims. Plainti 7 || shall not identify any additional defendants in any claims or attempt to add any new claims 8 || his operative Second Amended Complaint. 9 IT IS FURTHER ORDERED that Plaintiff Motion for this Court to Review and Resolve tl 10 || Undecided Pending Motion at ECF No. 110 is DENIED as moot. 11 12 DATED THIS 20th day of January, 2021. 13 14 Cases 4 . gpechols ELAYNA J. Y A 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28