O'Grady-Sullivan v. The State of Nevada et al

Filing 39

ORDER that Defendants Motion to Dismiss 18 is GRANTED in part and DENIED in part. Granted as to the following claims: (1) punitive damages for the state causes of action, (2) Eighth Amendment, (3) § 1983 claims against Hafen, Perry, Bennett, Demeo, Hegge, and the Doe Defendants in their official capacities, (4) § 1983 claims against the Nevada Department of Public Safety and the Nevada Highway Patrol, and (5) First Amendment Retaliation. Denied as to all other claims. Plaintiffs Motion for Leave to File Sur-Reply 27 is GRANTED. Signed by Judge Roger L. Hunt on 12/15/11. (Copies have been distributed pursuant to the NEF - ECS)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8
9

DISTRICT OF NEVADA

10

***

11
12
13
14
15

TARA O’GRADY-SULLIVAN,

)
)
Plaintiff,
)
)
vs.
)
)
THE STATE OF NEVADA, et al.,
)
)
Defendants.
)
_______________________________________)

Case No.: 2:11-cv-00839-RLH-LRL
ORDER
(Motion to Dismiss–#18;
Motion for Leave to File Sur-Reply–#27)

16
17

Before the Court is Defendants Chris Bennett, Nevada Department of Public Safety,

18

Nevada Highway Patrol, Chris Perry, and the State of Nevada’s Motion to Dismiss (#18, filed

19

July 1, 2011) and Plaintiff Tara O’Grady-Sullivan’s Motion for Leave to File Combined Sur-

20

Reply or to Strike Defendants’ Replies (#27, filed Aug. 17). The Court has also considered the

21

oppositions and replies for these motions.

22
23

BACKGROUND
This case arises out of Plaintiff’s allegations that she was physically assaulted by

24

two law enforcement officers and treated inhumanely while in their custody. Plaintiff asserts the

25

following allegations in support of her claims. On December 17, 2008, Defendant John Hegge, a

26

Deputy Sheriff of the Nye County Sheriff’s Office, came to Plaintiff’s residence in Beatty, Nevada

AO 72
(Rev. 8/82)

1

1

during an investigation. While Hegge was at Plaintiff’s residence he was allegedly bitten by

2

Plaintiff’s dog. The following day, the dog was taken for a ten-day quarantine by William Gray of

3

the Nye County Animal Control. Plaintiff subsequently received various anonymous emails

4

threatening that her dog would be killed. Hegge’s name was mentioned in these emails. On

5

December 31, Plaintiff was informed that her dog died while in quarantine.

6

Later that same day Plaintiff went to the Beatty Club, which is apparently a bar that

7

was owned by Alpheus Bruton, her former boyfriend. Bruton informed Plaintiff that he intended

8

to drive to Las Vegas that night even though he had been drinking. Plaintiff and Bruton left the

9

Club together and Bruton got into his vehicle and started driving away. Plaintiff noticed a trooper

10

with the Nevada Highway Patrol in a vehicle across the highway so she tried to get the trooper’s

11

attention by waving and pointing toward Bruton. Plaintiff continued walking down the road until

12

the trooper, Defendant Chris Bennett, got out of his vehicle and approached Plaintiff. Plaintiff

13

attempted to explain to Bennett that Bruton was driving drunk when, without explanation, Bennett

14

grabbed her, punched her, forcefully threw her to the ground, and handcuffed her.

15

Bennett then placed Plaintiff in his vehicle. However, because Bennett did not lock

16

the doors Plaintiff exited the vehicle. Plaintiff demanded to know why she was being attacked and

17

whether she was being arrested. Bennett grabbed Plaintiff again, threw her to the ground, and

18

began beating her. With Plaintiff’s face to the ground, Bennett repeatedly kicked her and smashed

19

her face to the ground, knocking out her front teeth and injuring her face. Hegge then arrived at

20

the scene and also began punching and kicking Plaintiff. The Defendants refused to give Plaintiff

21

medical care despite the fact that an ambulance was at the scene and eventually Plaintiff was

22

transported to Nye County Jail in Beatty where she was booked for several criminal charges.

23

Plaintiff also alleges she was treated inhumanely during her detention at the jail.

24

She was held in a room with no sink or toilet and forced to sleep on a urine-soaked mattress. She

25

was forced to undergo a blood-alcohol test during which Bennett repeatedly shoved the device into

26

her mouth, injuring both her mouth and throat. She was forced to take a cold shower, which

AO 72
(Rev. 8/82)

2

1

caused her significant pain given her injuries. And she was refused access to a lawyer and denied

2

medical care, other than some Tylenol.

3

Eventually, Plaintiff was transported to a hospital, albeit in handcuffs, leg restraints,

4

jail clothes, and with no shoes. On the way to the hospital Hegge contacted the driver of the

5

ambulance and ordered him to pull over. Hegge informed Plaintiff that he had “spoken to the

6

judge” and the judge had ordered Hegge to release Plaintiff. Hegge did so but refused to remove

7

Plaintiffs’ handcuffs and leg restraints. Plaintiff eventually arrived at the Desert View Regional

8

Medical Center in Pahrump, Nevada, where she remained in handcuffs and leg restraints for

9

several hours until someone from the Pahrump division of the Nye County Sheriff’s Office

10

released her. Concerned for her 14 year-old daughter, who had been alone since the evening

11

Plaintiff was first taken into custody, Plaintiff checked out of the hospital and began walking back

12

towards Beatty. After walking 10 of the 70 miles from Pahrump to Beatty, Plaintiff was picked up

13

by someone and taken home.

14

On December 30, 2010, Plaintiff filed a complaint in Nye County District Court,

15

asserting claims for violation of civil rights under 42 U.S.C. § 1983, assault and battery, negligent

16

and intentional infliction of emotional distress, civil conspiracy, respondeat superior, negligence,

17

unlawful arrest, false imprisonment, and negligent hiring, training, and supervision. Defendants

18

Bennett, Nevada Department of Public Safety, Nevada Highway Patrol, Chris Perry, and the State

19

of Nevada have now filed a motion to dismiss some of these claims. Defendants Nye County,

20

Anthony DeMeo, and Hegge have joined this motion. Plaintiff also filed a motion for leave to file

21

a sur-reply to Defendants’ motion. For the reasons discussed below, the Court grants Defendants’

22

motion in part and denies it in part, and grants Plaintiff’s motion.

23

///

24

///

25

///

26

///

AO 72
(Rev. 8/82)

3

1
2

DISCUSSION
I.

Plaintiff’s Motion for Leave to File a Sur-Reply

3

Plaintiff asks the Court to consider a sur-reply to Defendants’ motion to dismiss

4

because Defendants raise arguments in their reply that were not raised in their original motion.

5

The Court agrees and will therefore consider Plaintiffs’ sur-reply, as well as the rest of the briefing

6

on this motion, in resolving Defendants’ motion to dismiss.

7

II.

8

Defendants’ Motion to Dismiss
A.

Legal Standard

9

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

10

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

11

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

12

8(a)(2). While Rule 8 does not require detailed factual allegations, it demands “more than labels

13

and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal,

14

129 S. Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual

15

allegations must be enough to rise above the speculative level.” Bell Atlantic Corp. v. Twombly,

16

550 U.S. 544, 555 (2007). Thus, to survive a motion to dismiss, a complaint must contain

17

sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at

18

1949 (internal citation omitted).

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

AO 72
(Rev. 8/82)

4

1

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

2

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

3

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

4

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

5

B.

Analysis

6

1.

7

The Eleventh Amendment bars a federal court award of damages under § 1983

8

against a state, state agency, or state official sued in an official capacity. Quern v. Jordan, 440

9

U.S. 332, 342 (1979); Edelman v. Jordan, 415 U.S. 651, 663 (1974). Furthermore, neither a state

10

nor a state official sued in an official capacity for monetary damages is a “person” for purposes of

11

a § 1983 damages action. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore,

12

even if a state waives its Eleventh Amendment immunity in federal court, Will precludes a

13

damages action against the state government entity or a state official sued in an official capacity

14

for monetary damages. Id. However, a state official sued in an official capacity is a “person”

15

under § 1983 when sued for prospective relief. Id. at 71 n. 10. Therefore, Plaintiff’s § 1983

16

claims against the Nevada Department of Public Safety and the Nevada Highway Patrol are

17

dismissed because these are state agencies and state agencies are not “persons” under § 1983.

18

Furthermore, Plaintiff’s § 1983 claims against the officers of these state agencies1 in their official

19

capacities are also dismissed because they were not sued for prospective relief.

20

Section 1983 Claims Against State and its Officials

Additionally, a § 1983 claim against a municipal official in his or her official

21

capacity, for monetary damages, is treated as a claim against the municipal entity itself. Kentucky

22

v. Graham, 473 U.S. 159, 166 (1985). Plaintiff sued the Nye County Sheriff’s office as well as

23

two officials from the Nye County Sheriff’s office—Anthony Demeo (Sheriff of Nye County) and

24
25
26
AO 72
(Rev. 8/82)

1

Jearld L. Hafen (Director of the Nevada Department of Public Safety), Chris Perry (Chief of the
Nevada Highway Patrol), Chris Bennett (officer with the Nevada Highway Patrol), various Doe Defendants who
were employees of these entities.

5

1

John Hegge (Deputy Sheriff of the Nye County Sheriff’s Office). Therefore, Plaintiff’s § 1983

2

claims against Hegge and Demeo in their official capacity are dismissed because these claims are

3

redundant and treated as claims against the Nye County Sheriff’s Office itself.

4

2.

5

To state a claim for First Amendment Retaliation, a plaintiff must adequately allege

6

that the defendant took action that would chill or silence a person of ordinary firmness from future

7

First Amendment activities, and that their desire to cause the chilling effect was a but-for cause of

8

their actions. Skoog v. County of Clackamas, 469 F.3d 1221, 1231–32 (9th Cir. 2006). Plaintiff

9

alleges that during her arrest Bennett repeatedly battered her because she made a gesture towards

10

Bruton, her former boyfriend who was driving drunk, and because she waived at Bennett trying to

11

get his attention. She also alleges that after Bennett approached her she tried to tell him that

12

Bruton was driving drunk when Bennett began punching her. Plaintiff’s allegations fail to state a

13

valid First Amendment Retaliation claim because it is not plausible that Bennett would batter

14

Plaintiff merely because she told him that Bruton was driving drunk. These allegations alone are

15

therefore insufficient under Iqbal and Twombly.

16

First Amendment

Plaintiff explains in her sur-reply that there are additional facts that make the claim

17

valid, specifically, that when Bennett approached her she accused him of killing her dog. These

18

additional allegations may make Plaintiff’s claim plausible, however, because they were not

19

included in Plaintiff’s complaint the Court may not consider them. Accordingly, the Court grants

20

Defendants’ motion with respect to Plaintiff’s First Amendment Retaliation, but it does so without

21

prejudice.

22

3.

23

The Fifth Amendment to the U.S. Constitution provides that no person shall be

Fifth Amendment

24

deprived of life, liberty, or property without due process of law. Plaintiff alleges that Defendants

25

violated the Fifth Amendment by beating, restraining, and detaining Plaintiff without cause.

26

Defendants argue that the Fifth Amendment Due Process clause applies only in criminal cases, and

AO 72
(Rev. 8/82)

6

1

because Plaintiff’s Fifth Amendment claim only alleges misconduct prior to the initiation of any

2

criminal proceedings the Court should dismiss the claim. However, in Defendants reply they

3

concede that this standard only applies to alleged violations of a plaintiff’s right not to be

4

compelled to be a witness against herself, which is correct. Accordingly, Defendants have

5

abandoned their argument and the motion is denied.2

6

4.

7

The Eighth Amendment applies only to post-trial detainees. Ingraham v. Wright,

Eighth Amendment

8

430 U.S. 651, 671–72 n. 40 (1977). Because Plaintiff is not a post-trial detainee her Eighth

9

Amendment claim fails as a matter of law and the Court dismisses it with prejudice.

10

5.

11

An assault occurs when a defendant causes a plaintiff to feel apprehension of

Assault

12

harmful or offensive conduct. Prosser and Keeton on Torts, § 10 at 43 (5th ed. 1984). Plaintiff

13

alleges that Barnett and Hegge repeatedly punched and kicked Plaintiff, and smashed her face to

14

the ground, while she was in their custody. During her detention Barnett allegedly shoved a

15

breathalyser device into Plaintiff’s mouth. In other words, Plaintiff alleges she was repeatedly

16

battered while in Barnett and Hegge’s custody. Under these facts, Plaintiff would have reasonably

17

felt apprehension of harmful or offensive conduct from Barnett and Hegge whenever she laid eyes

18

on them. Therefore, the Court denies Defendants’ motion with respect to Plaintiffs’ assault claim.

19

6.

20

NRS 41.035(1) precludes exemplary or punitive damages awards “against a present

21

or former officer or employee of the State or any political subdivision . . . .” Therefore, Plaintiff’s

22

state causes of action may not include any amount as exemplary or punitive damages.

Punitive Damages

23
24
25
26
AO 72
(Rev. 8/82)

2

The Court refuses to address Defendants’ Heck Doctrine arguments. If Plaintiff attempts to amend her
complaint to include a coerced confession claim she may do so pursuant to the rules. At that point the Court will
consider the Heck Doctrine, when it has been fully briefed (hopefully in a more concise and readable fashion, the
Court does not like reading long block quotes when counsel can summarize the law with their own, more concise
language).

7

1

CONCLUSION

2

Accordingly, and for good cause appearing,

3

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#18) is

4
5

GRANTED in part and DENIED in part.
•

Granted as to the following claims: (1) punitive damages for the state causes

6

of action, (2) Eighth Amendment, (3) § 1983 claims against Hafen, Perry,

7

Bennett, Demeo, Hegge, and the Doe Defendants in their official capacities,

8

(4) § 1983 claims against the Nevada Department of Public Safety and the

9

Nevada Highway Patrol, and (5) First Amendment Retaliation;

10

•

11

IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Sur-Reply

12
13

Denied as to all other claims.

(#27) is GRANTED.
Dated: December 15, 2011

14
15

____________________________________
ROGER L. HUNT
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
AO 72
(Rev. 8/82)

8