Haynes v. Desert Regional Center et al

Filing 17

ORDER that Defendants Motion to Dismiss 6 is DENIED without prejudice. Plaintiff is granted two (2) weeks form the date of this order to file a new proposed amended complaint correcting the issues discussed above. The Court reserves ruling on Plaintiffs motion until such time. Signed by Chief Judge Roger L. Hunt on 5/3/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BEVERLY HAYNES ,

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Plaintiff,
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vs.
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DESERT REGIONAL CENTER, A Nevada
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State Run Facility; THE STATE OF NEVADA; )
SUSAN YATES, an individual; STACEY
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WHITE, an individual; and DOES and ROES I )
through XX inclusive,
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Defendants.
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_______________________________________)

Case No.: 2:10-cv-02176-RLH-RJJ
ORDER
(Motion to Dismiss, or in
the alternative, Motion for
More Definite Statement–#6;
Counter Motion for Leave to
Amend Complaint–#15)

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Before the Court is Defendants the State of Nevada, the Desert Regional Center

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(“DRC”), Susan Yates, and Stacey White’s Motion to Dismiss, or in the alternative, Motion for

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More Definite Statement (#6, filed Jan. 10, 2011), for failure to state a claim. The Court has also

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considered Plaintiff Beverly Haynes’ Opposition (#8, filed Jan. 20, 2011), and Defendants’ Reply

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(#9, filed Jan. 25, 2011).

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Also before the Court is Haynes’ Counter Motion for Leave to Amend

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Complaint (#15, filed Feb. 28, 2011). The Court has also considered Defendants’ Opposition

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(#16, filed March 10, 2011). Haynes did not reply.

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BACKGROUND

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This dispute arises from alleged employment discrimination at the Desert Regional

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Center, a state-run medical facility. Haynes, an African American of Jamaican decent, was a nurse

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at the DRC. During her time of employment she had two separate supervisors, first Susan Yates

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and later Stacey White.

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Haynes claims that beginning in January 2008, she was discriminated against at

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work. For example, White would make discriminatory comments such as that she disliked

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Haynes’ Jamaican accent and that she did not like foreigners and that both Yates and White unduly

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criticized and harassed her because of her race and national origin. Further, Haynes claims that

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Yates and White reported false and exaggerated claims against her to the Nevada State Board of

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Nursing (“State Board”). However, Haynes did not know that these claims were false at the time

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Yates and White reported them to the State Board, therefore, Haynes signed a type of settlement

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agreement with the State Board, an Agreement for Reprimand, accepting a reprimand for these

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false accusations. Haynes claims that after signing the settlement agreement she discovered that

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Yates and Whites falsified the allegations against her and therefore brings suit. Haynes also filed a

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complaint with the Nevada Equal Rights Commission based on her discrimination claims and has

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since received a right to sue letter.

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Haynes filed suit on December 15, 2011, pro se, against the DRC, the State of

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Nevada, Susan Yates, and Stacey White asserting the following claims: (1) wrongful termination,

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(2) hostile work environment, (3) employment discrimination, (4) fraud and misrepresentation, and

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(5) defamation. Now before the Court are two motions. The first motion is Defendants’ Motion to

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Dismiss, or in the Alternative, for a More Definite Statement. Defendants’ seek dismissal of all

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claims against the DRC, dismissal of the Title XII discrimination claims against Yates and White,

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and dismissal of the fraud and defamation claims against. The second motion is Haynes’ Motion

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for Leave to Amend to correct certain errors in her complaint. Haynes only obtained legal counsel

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after filing her motion and her opposition to Defendants’ motion. For the reasons discussed

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below, the Court denies both motions pending certain conditions.

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DISCUSSION
I.

Legal Standard

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The Court will discuss both motions jointly. Therefore, the Court presents the
standards for both motions before proceeding with the Court’s analysis.
A.

Motion to Dismiss

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short

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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require

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detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

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(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise

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above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a

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complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its

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face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted).

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In Iqbal, the Supreme Court recently clarified the two-step approach district courts

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are to apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the

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assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only

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by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider

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whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A

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claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw

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a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where

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the complaint does not permit the court to infer more than the mere possibility of misconduct, the

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complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal

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quotation marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.

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Also, “documents ‘whose contents are alleged in a complaint and whose

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authenticity no party questions, but which are not physically attached’” to the pleading, may be

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considered in ruling on a Rule 12(b)(6) motion to dismiss. In re Silicon Graphics Inc. Sec. Litig.,

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183 F.3d 970, 986 (9th Cir. 2002) (superseded by statute on other grounds) (quoting Branch v.

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Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)). Therefore, the Court may consider the contents of

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Agreement for Reprimand that Haynes signed.

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B.

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Motion for Leave to Amend
Under Rule 15 of the Federal Rules of Civil Procedure, a party may amend its

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complaint only by leave of the court once responsive pleadings have been filed and in the absence

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of the adverse party’s written consent. Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789,

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799 (9th Cir. 2001). The court has discretion to grant leave and should freely do so “when justice

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so requires.” Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (quoting Fed. R.

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Civ. P. 15(a)). Nonetheless, courts may deny leave to amend if it will cause: (1) undue delay; (2)

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undue prejudice to the opposing party; (3) the request is made in bad faith; (4) the party has

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repeatedly failed to cure deficiencies; or (5) the amendment would be futile. Leadsinger, Inc. v.

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BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008).

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II.

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Analysis
A.

Parties
Defendants correctly argue that the DRC should be dismissed. Pursuant to NRS §

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41.031(2), an action against the State must be brought against a particular department,

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commission, board, or other agency. The DRC is a facility, not a department, commission, board,

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or other agency, and therefore not a proper defendant. In Haynes’ proposed amended complaint,

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she alters her complaint to state a claim against “DESERT REGIONAL CENTER, a Nevada

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Facility operated by the DEPARTMENT OF HEALTH AND HUMAN SERVICES.”

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Nonetheless, this is still the incorrect defendant as the claim is still made against the DRC rather

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than the agency which operates it. The Court orders Haynes to correct this and name the proper

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entity, likely the Nevada Department of Health and Human Services or the Nevada Department of

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Health and Human Services, Division of Mental Health and Developmental Services. The time for

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submitting a new proposed amended complaint will be addressed below.

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B.

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Immunity
Defendants argue that Yates and White should be immune from the defamation and

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fraud claims under NRS §§ 41.032 and 632.472. However, both of these statutes only immunize

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state actors who exercise due care or act in good faith. If Haynes’ allegations prove true, then

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neither Yates or White exercised due care or acted in good faith. It is axiomatic that falsifying

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reports is not acting with due care or in good faith. Therefore, the Court will not dismiss these

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claims based on an immunity defense.

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C.

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Defamation
To properly plead defamation, a plaintiff must allege: “(1) a false and defamatory

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statement of fact by the defendant concerning the plaintiff; (2) an unprivileged publication to a

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third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.”

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Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005). The Nevada Supreme Court has also stated that

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“statements made in good faith furtherance of one’s official duties are generally privileged.”

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Jordan v. State ex rel. Its Dept. Of Motor Vehicles & Public Safety, 110 P.3d 30, 48 n.56

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(abrogated on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d 670, 673 n.6

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(Nev. 2008)).

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Haynes’ claims that Yates and White defamed her by submitting false and

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exaggerated statements to the State Board intending that the State Board revoke or suspend

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Haynes’ nursing license. Yates and White, however, claim that their statements were privileged

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because they were required to report possible violations of nursing statutes to the State Board

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under NRS § 632.472. This statute mandates certain parties to report when a licensed nurse

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violates provisions of NRS Chapter 632; it does not condone fabrication of statutory violations or

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mandate reporting of such fabricated violations. Assuming Haynes’ allegations are true, Yates and

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White’s statements are not be privileged. Therefore, the Court does not dismiss this claim.

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D.

Fraud and Misrepresentation
Misrepresentation is a form of fraud where a false representation is relied upon in

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fact. See Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 871 (Nev. 1980). Fraud claims must meet a

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heightened pleading standard under Rule 9, which requires a party to “state with particularity the

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circumstances constituting fraud.” Fed. R. Civ. P. 9(b). Pleading fraud with particularity requires

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“an account of the time, place, and specific content of the false representations, as well as the

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identities of the parties to the misrepresentations.” Swartz v. KPMG, LLP, 476 F.3d 756, 764 (9th

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Cir. 2007); see also Morris v. Bank of Nev., 886 P.2d 454, 456 n.1 (Nev. 1994). Further, under

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Nevada law, a claim for fraud (or fraudulent misrepresentation) requires a party to show each of

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the following elements: (1) a false representation; (2) knowledge or belief that the representation

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was false (or knowledge that the defendant had an insufficient basis for making the

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representation); (3) intent to induce the plaintiff to act or refrain from acting; (4) justifiable

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reliance upon the misrepresentation; and (5) damage resulting from such reliance. J.A. Jones

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Constr. Co. v. Lehrer McGovern Bovis, Inc., 89 P.3d 1009, 1017 (Nev. 2004); see also Barmettler

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v. Reno Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998).

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Haynes fails to adequately plead fraud for two reasons. First, Haynes’ complaint

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does not meet Rule 9’s specificity requirements. To maintain this claim, Haynes must amend her

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complaint to specify when these statements were made and the specific fraudulent content of the

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false statements. Second, Haynes’ complaint attempts to state a claim for fraud on behalf of the

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State Board rather than for herself. Essentially, her complaint states that Yates and White

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fraudulently induced the State Board to act, but does not allege that Yates and White fraudulently

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induced her to act. However, Haynes’ opposition sets out a claim for fraud in that she claims

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Yates and White fraudulently induced her to sign the Agreement for Reprimand accepting

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punishment from the board through their fraudulent conduct. Since this claim is not made in the

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actual complaint, but only in Haynes’ opposition, the Court would generally dismiss this claim.

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However, as Haynes has already moved to amend her complaint to fix other errors, the Court

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grants Haynes two (2) weeks from the date of this order to file a new proposed amended complaint

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for the Court’s consideration. At that time, the Court will make a determination on the issues

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discussed above.

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E.

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Title VII Claims against Yates and White
Lastly, Defendants also argued that the Court should dismiss the Title VII claims

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against Yates and Whites. In her proposed amended complaint, Haynes omitted Yates and White

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from these claims, as is proper. As long as this remains true in Haynes’ next proposed amended

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complaint, this issue is moot and the Court need not address it further.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#6) is DENIED

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without prejudice.
IT IS FURTHER ORDERED that Plaintiff is granted two (2) weeks form the date

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of this order to file a new proposed amended complaint correcting the issues discussed above. The

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Court reserves ruling on Plaintiff’s motion until such time.

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Dated: May 3, 2011.

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____________________________________
ROGER L. HUNT
Chief United States District Judge

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