Kelly v. Las Vegas Metropolitan Police Department et al

Filing 54

ORDER Granting 7 Motion to Dismiss. Granting 13 Motion for Judgment on the pleadings. Denying as moot 18 Motion for Leave to File Amended Opposition. Denying as moot 21 Motion to Stay Discovery. Denying as moot 23 Motion to File Surreply. Amended Complaint due within 30 days. Signed by Judge Larry R. Hicks on 6/28/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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*****

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GREGORY KELLY,

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Plaintiff,

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vs.

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,

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Defendants.
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) 2:12-cv-02074-LRH-CWH
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) ORDER
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Before the court are Defendant NaphCare, Inc.’s (NaphCare) Motion to Dismiss (#71) and

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Defendants Las Vegas Metropolitan Police Department’s (LVMPD) and Police Officer William

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F. Catricala, Jr.’s Motion for Judgment on the Pleadings (#13). Plaintiff has responded to both

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Motions (##11, 19), to which NaphCare and LVMPD and Catricala have replied (##15, 22,

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respectively).

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I.

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Facts and Procedural History
On December 5, 2010, LVMPD Officers responded to a call reporting a domestic

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disturbance at Plaintiff’s residence. After Plaintiff refused to exit his residence, the officers

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entered and arrested Plaintiff. During the arrest, Plaintiff claims he suffered injuries to his left

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shoulder and left knee. The officers later transported Plaintiff to Clark County Detention Center

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(CCDC), where Plaintiff claims he received no medical attention for his injuries, despite his

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waiting a significant time in the designated NaphCare waiting room.

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Before Plaintiff was released later that night, he objected to not receiving medical
attention for his shoulder and knee. The NaphCare supervising medical attendant told Plaintiff

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Refers to the court’s docket entry number.

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that because it was Sunday, the X-ray machine was not available. However, she continued,

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Plaintiff could stay overnight and receive the scan on Monday if he preferred. Plaintiff chose

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instead to return home.

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After filing a complaint with LVMPD’s Internal Affairs, Plaintiff met with three officers

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in January 2011 to discuss the incident. Plaintiff claims the officers were shocked to learn

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Plaintiff had not received medical attention while at CCDC, presumably because the officers did

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indeed have records of Plaintiff receiving medical care. Plaintiff alleges any such records must

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have been falsified.

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Plaintiff filed his Complaint (#1) on December 5, 2012. On December 18, 2012,

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Defendant NaphCare filed the instant Motion to Dismiss Plaintiff’s Fourth Cause of Action,

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“Deliberate Indifference to Plaintiff’s Serious Medical Needs, Inclusive of Medical Malpractice”

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as barred by the statute of limitations (#7). After Plaintiff’s response and NaphCare’s reply,

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Plaintiff moved to file an Amended Opposition to NaphCare’s Motion to Dismiss (#18), which

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included his proposed Amended Opposition. Following NaphCare’s Opposition (#20), Plaintiff

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moved for leave to file a Surreply to Naphcare’s Motion to Dismiss (#23) and also filed his

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proposed Surreply (#24), which is identical to his proposed Amended Opposition. NaphCare

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opposed Plaintiff’s Motion for Leave to File a Surreply (#25), to which Plaintiff replied (#28).

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Simultaneously, LVMPD and Officer Catricala filed the instant Motion for Judgment on

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the Pleadings to dismiss Plaintiff’s Eighth Amendment claims, Plaintiff’s duplicative Fourteenth

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Amendment claims, and Plaintiff’s duplicative claims against Catricala in his official capacity

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(#13). Finally, Defendants filed a Joint Motion to Stay Discovery until the court has resolved the

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instant motions (#21).

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II.

Legal Standard

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To state a claim for relief, the pleading must contain “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though the Rule 8

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pleading standard does not require “detailed factual allegations,” mere “labels and conclusions”

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or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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To withstand a 12(b)(6) motion to dismiss under the Federal Rules of Civil Procedure, the

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complaint must contain factual statements that, when assumed true, “state a claim to relief that is

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plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible if the

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factual content is sufficient to allow the court to reasonably infer, based on the court’s judicial

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experience and common sense, the defendant’s liability in the alleged misconduct. See id. at

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678–679.

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Though the court, when reviewing a motion to dismiss, accepts the plaintiff’s claimed

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facts, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of the

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elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv.,

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572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 681) (alteration in original)

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(internal quotation marks omitted). These statements are not assumed true because they do

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“nothing more than state a legal conclusion – even if that conclusion is cast in the form of a

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factual allegation.” Id. (citing Iqbal, 556 U.S. at 681).

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Additionally, a party may move for judgment on the pleadings once the pleadings are

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closed. Fed. R. Civ. P. 12(c). This includes motions for judgments for failure to state a claim

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upon which relief can be granted. Fed R. Civ. P. 12(h)(2)(B). As with a 12(b)(6) motion to

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dismiss, in a 12(c) motion for judgment on the pleadings, “all allegations of fact of the opposing

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party are accepted as true.” JPMorgan Chase Bank v. Access Healthsource, Inc., 225 F. App’x

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663, 664 (9th Cir. 2007) (quoting Austad v. United States, 386 F.2d 147, 149 (9th Cir. 1967)).

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The motion should be granted “[o]nly if it appears that, on the facts so admitted, the moving

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party is clearly entitled to prevail.” Id. (quoting Austad, 386 F.2d at 149).

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III.

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Discussion
Plaintiff brings claims against LVMPD and NaphCare under 42 U.S.C. § 1983, alleging

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their failure to properly treat him violated his Eighth Amendment and Fourteenth Amendment

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due process rights. Plaintiff alleges LVMPD and NaphCare were deliberately indifferent to his

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medical needs, particularly toward his left knee and shoulder. Additionally, Plaintiff brings

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§ 1983 claims, in relevant part, against Officer Catricala – both individually and in his official

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capacity – and LVMPD for unreasonable search and seizure, in violation of the Fourth and

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Fourteenth Amendments.

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A. Plaintiff’s Claims Against NaphCare

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Although § 1983 claims have no specific federal statute of limitations, courts use the

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relevant state statute of limitations applying to personal injury actions. See McDougal v. County

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of Imperial, 942 F.2d 668, 672 (9th Cir. 1991) (citing Wilson v. Garcia, 471 U.S. 261, 279–280

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(1985)). When a state has multiple statutes of limitations for various personal injury actions, the

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relevant statute is the general or residual statute for personal injury actions. Wise v. Verizon

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Commc’n, Inc., 600 F.3d 1180, 1185 (9th Cir. 2010) (citing Owens v. Okure, 488 U.S. 235,

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249–250 (1989)).

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As the residual statute for personal injury actions, Nevada Revised Statute § 11.190(4)(e)

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is the appropriate statute of limitations, rather than, as NaphCare claims, § 41A.097. See Perez v.

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Seevers, 869 F.2d 425, 426 (1989). This statute allows claims to be filed within two years of the

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injury. Because Plaintiff filed his Complaint exactly two years after the alleged incident,

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Plaintiff’s claims were timely filed.

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Plaintiff’s Eighth Amendment claim against NaphCare, however, must still be dismissed.

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When the claim relates to a pretrial detainee, and not a convicted prisoner, the detainee’s right to

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medical care stems from the Fourteenth Amendment’s Due Process Clause, rather than from the

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Eighth Amendment. Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (citing City of Revere v.

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Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).

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Regardless, the standard for a prisoner’s Eighth Amendment claim is the same as the

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standard for a detainee’s Fourteenth Amendment claim. Simmons v. Navajo County, 609 F.3d

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1011, 1017 (9th Cir. 2010). A plaintiff must show the official acted with deliberate indifference

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to the plaintiff’s needs. Id. To show deliberate indifference, the plaintiff must show the official

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was “(a) subjectively aware of the serious medical need and (b) failed adequately to respond.” Id.

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at 1017–18 (quoting Conn v. City of Reno, 591 F.3d 1081, 1096 (9th Cir. 2010)) (emphasis in

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original).

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Here, Plaintiff has failed to show his medical needs were serious. After his release,

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Plaintiff did not seek any medical care anywhere else. For serious medical needs, Plaintiff’s lack

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of funds is not a persuasive reason for failing to seek any other medical care. Moreover, Plaintiff

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could have received medical care if he had waited the night at CCDC, but Plaintiff chose to

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forego this treatment, believing that attending to his dogs at the time was more important.

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Because Plaintiff fails to allege a serious medical need, his claims against NaphCare are

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dismissed.

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B. Plaintiff’s Claims Against LVMPD and Officer Catricala

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Regarding Plaintiff’s claims against LVMPD and Officer Catricala, Plaintiff has

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voluntarily dismissed his claims against Officer Catricala in his official capacity and his Eighth

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Amendment claim in his Fourth Cause of Action. The only remaining disputed claim is

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Plaintiff’s Fourteenth Amendment claim in his Second Cause of Action for false arrest and false

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imprisonment under § 1983, where Plaintiff claims the police officers subjected him to an

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unreasonable search and seizure.

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The Fourteenth Amendment’s substantive due process guarantee does not apply to all

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violations of citizens’ rights. When a particular amendment provides an “explicit textual source

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of constitutional protection,” courts use that amendment, rather than the Fourteenth Amendment,

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as the basis for relief. Graham v. Connor, 490 U.S. 386, 395 (1989). Because the Fourth

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Amendment explicitly provides for protection against unreasonable searches and seizures,

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Plaintiff’s claim is properly analyzed under the Fourth Amendment only, not the Fourteenth

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Amendment. See Albright v. Oliver, 510 U.S. 266, 273–74 (1994); Graham, 490 U.S. at 395;

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Armendariz v. Penman, 75 F.3d 1311, 1318–20 (9th Cir. 1996), overruled on other grounds by

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Crown Point Dev., Inc. v. City of Sun Valley, 506 F.3d 851, 856–57 (9th Cir. 2007). Thus,

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Plaintiff’s Fourteenth Amendment claims in his Second Cause of Action are dismissed, leaving

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only his Fourth Amendment claims.

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Because Plaintiff is a pro se litigant and has not yet amended his complaint, Plaintiff shall
have leave to amend his initial complaint.

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IT IS THEREFORE ORDERED that Defendant NaphCare, Inc.’s Motion to Dismiss (#7)

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is GRANTED.

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IT IS FURTHER ORDERED that Defendants Las Vegas Metropolitan Police

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Department’s and Police Officer William F. Catricala, Jr.’s Motion for Judgment on the

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Pleadings (#13) is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff is granted leave to file an amended complaint
within thirty (30) days of the entry of this Order.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Amended
Opposition (#18) and Plaintiff’s Motion to File Surreply (#23) are DENIED as moot.
IT IS FURTHER ORDERED that Defendants’ Joint Motion to Stay Discovery (#21) is
DENIED as moot.

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IT IS SO ORDERED.

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DATED this 28th day of June, 2013.

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_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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