Arrington v. State of Nevada et al

Filing 83

ORDER Granting in part and Denying in part 7 Motion to Dismiss. The remainder of this case is REMANDED back to the Eighth Judicial District Court. Signed by Judge Jennifer A. Dorsey on 9/22/2014. (Copies have been distributed pursuant to the NEF; CC: Certified Copy of Docket Sheet and Order Mailed to State Court - SLR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

Roderick Arrington,

Case No.: 2:13-cv-622-JAD-NJK

5

Plaintiff,

6

v.

7

Order Dismissing Federal Claim and
Remanding State Claims

Clark County Department of Family Services, et al.,

8

Defendants.

9
10
11

In this tragic case, the grieving father of a seven-year old boy killed at the hands of his

12

mother and step-father sues Clark County and its agencies for failing to timely intervene and protect

13

the child from his abusers at home. The County and its departments of family services and child

14

protective services move to dismiss the father’s state-tort-law and federal civil rights claims based

15

on qualified immunity, and they further challenge the civil rights claim on the basis that these

16

facts—though heartbreaking—do not state a constitutional violation as a matter of law. Although

17

the County may not avail itself of the qualified-immunity defense, I find that plaintiff has not pled a

18

§ 1983 claim and that the United States Supreme Court’s decision in Deshaney v. Winnebago

19

County Department of Social Services precludes him from doing so in this case. I thus grant the

20

motion to dismiss plaintiff’s lone federal claim, decline to retain supplemental jurisdiction over

21

plaintiff’s remaining state-law claims, and remand this case back to the Eighth Judicial District

22

Court.
Discussion

23
24
25
26

A.

Factual Background1
Seven-year-old Roderick Arrington, Jr. (“RJ”) arrived at Roundy Elementary School on

November 28, 2012, visibly in pain and barely able to walk or sit down in his classroom chair. Doc.

27
28

1

This background section is derived from allegations in the complaint and is not intended as
any finding of fact.
1

1

1-1 at 4. School officials examined him and discovered “extensive scarring” on his back. Id. RJ

2

explained to them that, when he gets in trouble at home, his mother Dina Jamise Beverly-Palmer

3

and/or her husband Markiece Palmer, would strike him with a TV cord, broom handle, spatula, or

4

belt. Id.2 School officials called the Clark County Department of Family Services (“DFS”) to

5

investigate RJ’s allegations, but DFS failed to return their call that day, so school officials sent RJ

6

home. That night, Dina and Markiece beat RJ unconscious; he died from a brain injury two days

7

later. Id.

8
9

RJ’s father, Roderick Arrington, Sr., (“Arrington”) sues Clark County, its department of
Child Protective Services (“CPS”), and DFS (collectively, “the County Defendants”) for failing to

10

intervene and prevent RJ’s death at the hands of his caretakers. Doc. 1-1.3 He pleads claims for

11

negligence; negligence per se for failing to comply with Nevada’s child protective custody statute,

12

NRS § 432B.260(2)(b); wrongful death; and a civil rights violation under a Monell theory. Id. at 5-

13

10.

14

B.

Motion to Dismiss

15

The County Defendants now move to dismiss the four claims against them. DFS and CPS

16

contend they are not proper defendants because they are municipal departments for which the State

17

of Nevada has not waived Eleventh Amendment immunity. Doc. 7 at 10-11. All County

18

Defendants argue that they are shielded from liability for all claims based on the doctrine of

19

qualified discretionary immunity. Id. at 6-10. And they aver that plaintiff’s ability to plead a

20

constitutional violation under Monell is foreclosed by the Supreme Court’s DeShaney v. Winnebago4

21

decision, which held that the government has no obligation to protect its citizens from harm by a

22
2

23
24
25
26
27
28

The complaint does not clarify the true relationship between Markiece and RJ’s mother, nor
is it material to this discussion; for purposes of this order, I refer to Markiece as Dina’s husband.
3

The complaint was originally filed in the Eighth Judicial District Court for Clark County,
Nevada, on February 14, 2013. Doc. 1 at 2; 1-1 at 1. Defendants removed this case to federal court
on April 11, 2013, based on federal question jurisdiction. Doc. 1 at 2-3. Arrington also sued the
State of Nevada, the State of Nevada Divisions of Child and Family Services, and the Clark County
School District; these defendants were dismissed via stipulation. Docs. 46, 80. Arrington also sued
Markiece Palmer and Dina Jamise Beverly-Palmer, and defaults have been entered against these
non-appearing defendants. Doc. 47.
4

DeShaney v. Winnebago, 489 U.S. 189 (1989).
2

1
2

third party. Id. at 3-5.
Plaintiff’s thin, eight-page opposition concedes that DFS and CPS “are not separate legal

3

entities that can be sued.” Doc. 26 at 7-8. But plaintiff contends that the doctrine of qualified

4

immunity has no application to municipalities like the County, and that his Monell claim survives

5

because the County “acquired an ‘affirmative duty’ enforceable through the Due Process Clause,

6

after it undertook to prevent RJ from harm.” Id. at 6. I now dismiss all claims against CPS and DFS

7

and dismiss the Monell claim because DeShaney precludes plaintiff from stating a plausible civil-

8

rights claim under these facts. Having dismissed the claim on which federal jurisdiction was

9

premised, I decline to retain supplemental jurisdiction over plaintiff’s remaining state claims. I

10

leave those claims—and any argument for their dismissal—to the state court’s adjudication.

11

1.

The Plausibility Standard

12

Federal Rule of Civil Procedure 8(a) governs the standard for pleadings in a federal cause of

13

action and provides, “[a] pleading that states a claim for relief must contain: (1) a short and plain

14

statement of the grounds for the court’s jurisdiction . . . .; (2) a short and plain statement of the claim

15

showing that the pleader is entitled to relief; and (3) a demand for the relief sought.” A district court

16

may dismiss a complaint brought under Rule 8(a) for failing to state a claim upon which relief can

17

be granted.5

18

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

19

as true, to state a claim for relief that is plausible on its face.”6 “[A] plaintiff’s obligation to provide

20

the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a

21

formulaic recitation of the elements of a cause of action will not do. Factual allegations must be

22

enough to raise a right to relief above the speculative level.”7 The Court is also “not bound to accept

23

as true a legal conclusion couched as a factual allegation.”8 To state a “plausible” claim for relief,

24
25

5

Fed. R. Civ. Proc. 12(b)(6).

26

6

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

7

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

8

Id. (quoting Papsan v. Allain, 478 U.S. 265, 286 (1986)).

27
28

3

1

the plaintiff must “plead[] factual content that allows the court to draw a reasonable inference that

2

the defendant is liable for the misconduct alleged.”9 This requires a plaintiff to state “enough facts

3

to raise a reasonable expectation that discovery will reveal evidence” of the allegations charged.10

4

2.

Dismissal of All Claims Against DFS and CPS

5

The County Defendants argue that only Clark County itself is a proper defendant in this case;

6

DFS and CPS are merely departments of the County that have not waived Eleventh Amendment

7

immunity to suit. Doc. 7 at 10. Arrington concedes these two defendants “are departments under

8

Clark County and they are not separate legal entities that can be sued or be sued,” and he represents

9

that in “no way are the Plaintiffs attempting to seek a double recovery by identifying” these two

10

defendants in the complaint. Doc. 26 at 8. He suggests that it is important to list these two

11

departments in his complaint to give the defendants a “clear idea” of who the bad actors were in this

12

case. Id. As plaintiff tacitly concedes that these entities are not proper defendants, and he offers no

13

substantive argument for retaining them as defendants, the claims against CPS and DFS individually

14

are dismissed. I thus consider the remaining motion-to-dismiss arguments only as to the County.

15
3.
16
17

Plaintiff’s Claim for Deprivation of Constitutional Rights Under 42 U.S.C. §
1983—Monell Liability

Plaintiff’s sixth cause of action asserts a § 1983 civil-rights action claim against the County

18

under a Monell-liability theory. Doc. 1-1 at 9. 42 U.S.C. § 1983 provides a mechanism for the

19

private enforcement of substantive rights conferred by the Constitution and federal statutes.11

20

Section 1983 “ ‘is not itself a source of substantive rights,’ but merely provides ‘a method for

21

vindicating federal rights elsewhere conferred.’”12 To state a claim under § 1983, a plaintiff “must

22

allege the violation of a right secured by the Constitution and the laws of the United States, and must

23
24

9

25

10

26

Iqbal, 556 U.S. at 678-79.

Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir.
2011) (quoting Twombly, 550 U.S. at 556).

27

11

28

12

Graham v. Connor, 490 U.S. 386, 393–94 (1989).

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137,
144 n. 3 (1979)).
4

1

show that the alleged deprivation was committed by a person acting under color of law.”13

2

Importantly, “Monell does not provide a separate cause of action for the failure by the government to

3

train its employees; it extends liability to a municipal organization where that organization’s failure

4

to train, or the policies or customs that it has sanctioned, led to an independent constitutional

5

violation.”14 Without a constitutional violation, no § 1983 liability lies—under a Monell theory or

6

otherwise.15
a.

7
8
9

A Qualified Immunity Defense Is Not Available to Clark County.

The County argues that even if the merits of Arrington’s section 1983 claim survive the
motion to dismiss, he cannot show that County officials or employees violated a “clearly

10

established” Constitutional right, therefore the County enjoys qualified immunity from this suit.

11

Doc. 7 at 6-7. But there is a fundamental problem with the County’s argument: the qualified-

12

immunity doctrine shields only individual government officials, not municipal entities.16 Arrington

13

sues only the County, not any individual County employee. The County cannot evade liability for

14

Arrington’s § 1983 claim under the doctrine of qualified immunity.
b.

15
16

Arrington Cannot Establish a § 1983 Claim on the Facts of this Case.

Arrington’s § 1983 claim must be dismissed for a different reason: he cannot establish a

17

constitutional violation on the facts of this case. Arrington alleges that Clark County, as well as its

18

supervisors and officers had a policy, practice, and custom “to tolerate and ratify the unresponsive

19

practices of its employees and agents to reports of extreme cases [of] child abuse and neglect,” and

20

that Clark County inadequately hired, trained, and supervised its officers and agents to respond to

21

reports of such extreme neglect “as in the case of the Decedent.” Doc. 1-1 at 9. According to

22

Arrington, in perpetrating this willful, oppressive, and malicious conduct Clark County intentionally

23

13

24

14

25
26
27
28

West v. Atkins, 487 U.S. 42, 48-49 (1988).

Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (emphasis in original);
Houskins v. Sheahan, 549 F.3d 480, 493-94 (7th Cir. 2008) (citing cases).
15

See id.; Monell v. Department of Social Svcs. of City of New York, 436 U.S. 658 (1978);
see Aguilera v. Baca, 510 F.3d 1161, 1174 (9th Cir. 2007).
16

Owen v. City of Independence, Missouri, 445 U.S. 622, 649-50 (1980); Hervey v. Estes, 65
F.3d 784, 791 (9th Cir. 1995) (“Governmental units may not assert the good faith of their officers or
employees as a defense to liability under section 1983.”).
5

1

disregarded RJ’s constitutional rights. See id. Although he fails to identify by his complaint what

2

constitutional right was violated, his opposition supplies it: RJ’s right to substantive due process

3

under the Fourteenth Amendment. Doc. 26 at 5-6.

4

But the United States Supreme Court’s opinion in DeShaney v. Winnebago County Dept. of

5

Social Services forecloses the success of any due process claim on these facts. Like the instant

6

lawsuit, DeShaney involved a parent’s § 1983 substantive-due-process claim seeking to redress the

7

county’s failure to intervene to protect a child against known abuse by the other parent.17 The

8

county’s department of social services (“DSS”) investigated Joshua DeShaney’s father for more than

9

two years and through two emergency-room visits, a temporary placement of the child in hospital

10

protective custody, a violated cooperation agreement between the father and DSS, and months of

11

home visits—allthewhile Joshua continued to sustain “suspicious” injuries and DSS did little more

12

than note these developments in its file—before the father “beat 4-year-old Joshua so severely that

13

he fell into a life-threatening coma.”18 The Supreme Court granted certiorari “[b]ecause of the

14

inconsistent approaches taken by the lower courts in determining when, if ever, the failure of a . . .

15

local entity to provide an individual with adequate protective services constitutes a violation of the

16

individual’s due process rights.”19

17

The High Court noted that the purpose of the due process clause is “to protect the people

18

from the State, not to ensure that the State protected them from each other,” and due process

19

generally confers “no affirmative right to government aid, even where such aid may be necessary to

20

secure life, liberty, or property interests. . . .”20 Applying constitutional principles to the facts, the

21

court explained, “[t]he most that can be said of the state functionaries in this case is that they stood

22

by and did nothing when suspicious circumstances dictated a more active role for them.”21 The

23

Court concluded, because “the State had no constitutional duty to protect Joshua against his father’s

24

17

489 U.S. at 193.

25

18

Id. at 192-93.

26

19

Id. at 194.

20

Id. at 196.

21

Id. at 203.

27
28

6

1

violence, [so] its failure to do so—though calamitous in hindsight—simply does not constitute a

2

violation of the Due Process Clause.”22 The rule derived from DeShaney is that “a State’s failure to

3

protect an individual against private violence simply does not constitute a violation of the Due

4

Process Clause,”23 except in two very limited circumstances: (1) when a “special relationship”

5

exists between the plaintiff and the governmental agency and (2) when the government affirmatively

6

places the plaintiff in danger by acting with “deliberate indifference” to a “known or obvious

7

danger.”24 “If either exception applies, a state’s omission or failure to protect may give rise to a §

8

1983 claim.”25

9

Plaintiff argues—rather baldly—that this is a “special relationship” case: “Clark County

10

acquired an ‘affirmative duty’ enforceable through the Due Process Clause, after it undertook to

11

prevent RJ from harm, then failed to discharge that duty, which was an abuse of government power

12

that so ‘shocks’ the conscience’ as to constitute a substantive due process violation.” Doc. 26 at 6.

13

But the special relationship exception is only triggered when the state “takes a person into its

14

custody and holds him there against his will.”26 “The special-relationship exception does not apply

15

when a state fails to protect a person who is not in custody.”27

16

There was no custodial situation in this case: RJ simply went to school and then went back

17

home. Doc. 1-1 at 4; 26 at 3. And the Ninth Circuit in Patel v. Kent School District held that even

18

mandatory school attendance does not give rise to the special relationship required to exempt a case

19

from the DeShaney rule.28 It is not enough that the County failed to protect RJ from harm; “the

20
21
22
23
24
25
26
27
28

22

Id. at 202.

23

Id. at 197; Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011) (citations and
alterations omitted).
24

Patel, 648 F.3d at 971-72 (citations omitted). Plaintiff neither pleads nor argues the
deliberate-indifference exception. Doc. 1-1 at 9; Doc. 26 at 6.
25

Id. at 972.

26

DeShaney, 489 U.S. at 199-200; Libscomb By and Through DeFehr v. Simmons, 962 F.2d
1374, 1389 & n.11 (9th Cir. 1992).
27

Patel, 648 F.3d at 972.

28

Id. at 973.
7

1

affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or

2

from its expressions of intent to help him, but from the limitation which it has imposed on his

3

freedom to act on his own behalf.”29 Just as the Court concluded in DeShaney, “while the [County]

4

may have been aware of the dangers that [this child] faced in the free world, it played no part in their

5

creation, nor did it do anything to render him any more vulnerable to them. . . . Under these

6

circumstances, the [County] had no constitutional duty to protect” RJ.30

7

Considering the significantly greater involvement between the protective services division in

8

DeShaney than in the instant case, the Supreme Court’s conclusion that Joshua DeShaney’s mother

9

could not establish a § 1983 substantive-due-process claim plainly forecloses Arrington from doing

10

so on these facts—as tragic as they are. Plaintiff’s sixth cause of action for violation of civil rights

11

under § 1983 and Monell is dismissed.

12

C.

13

No Leave to Amend
Although Arrington has never requested leave to amend his complaint, this court has an

14

obligation to consider when dismissing a claim for failure to state a claim upon which relief can be

15

granted to permit amendment if a pleading’s deficiencies may be cured by additional factual

16

allegations.31 If the court determines that the allegation of additional facts consistent with the

17

challenged pleading could not possibly cure the deficiency, dismissal without leave to amend is

18

appropriate.32

19

I find that DeShaney clearly prohibits Arrington from stating a claim based on the County’s

20

failure to protect RJ from his mother and step-father’s abuse, and I do not find that this legal

21

deficiency could be cured by the addition of any facts consistent with the instant pleading.

22

Accordingly, amendment would be futile, and the dismissal of the constitutional claim against the

23

County shall be without leave to amend.

24
29

DeShaney, 489 U.S. at 200 (citing Estelle v. Gamble, 429 U.S. 97, 102 (1976)).

30

Id. at 201.

27

31

See OSU Student Alliance v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).

28

32

25
26

Doughtery v. City of Covina, 654 F.3d 892, 901 (9th Cir. 2011) (citing Albrecht v. Lund,
845 F.3d 193, 195-96 & n.1 (9th Cir. 1988), modified, 856 F.2d 111 (9th Cir. 1988)).
8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9

1
2

D.

Remand of the State Law Claims
Federal jurisdiction in this case is premised on the pendency of a federal question:

3

Arrington’s civil-rights claim.33 Supplemental jurisdiction is a doctrine of discretion, not of right.34

4

A federal district court may decline to exercise supplemental jurisdiction over a state law claim if

5

“(1) the claim raises a novel or complex issue of State law; (2) the claim substantially predominates

6

over the claim or claims over which the district court has original jurisdiction; (3) the district court

7

has dismissed all claims over which it has original jurisdiction; or (4) in exceptional circumstances,

8

there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c). The decision

9

whether to decline to exercise supplemental jurisdiction under Section 1367(c) should be informed

10
11

by the values of economy, convenience, fairness, and comity.35
Economy, convenience, fairness, and comity compel me to decline to continue to exercise

12

supplemental jurisdiction over plaintiff’s remaining claims under 28 U.S.C. § 1367(c). The

13

dismissal of plaintiff’s Monell claim leaves him with only state law claims and me with no pending

14

claims over which this court has original jurisdiction. “[I]n the usual case in which all federal-law

15

claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise

16

jurisdiction over the remaining state-law claims.”36 And the tragic subject matter of this case is one

17

in which Nevada has a unique interest. Accordingly, I deny the rest of the motion to dismiss without

18

prejudice, decline to retain supplemental jurisdiction over plaintiff’s remaining state-law claims, and

19

remand this case back to the Eighth Judicial District Court for further proceedings.

20
21
22
23

Conclusion
Accordingly, based upon the foregoing reasons and with good cause appearing and no reason
for delay,
It is HEREBY ORDERED that the Clark County Defendants’ Motion to Dismiss [Doc. 7] is

24
25
26
27
28

33

See Doc. 1 at ¶ 8; 28 U.S.C. § 1367.

34

City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 172 (1997); United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
35

Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc).

36

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
10

1
2

GRANTED in part and DENIED in part:
1.

3

All claims against the Clark County Department of Family Services and the Clark
County Child Protective Services are dismissed;

4

2.

Plaintiff’s sixth cause of action is DISMISSED without leave to amend;

5

As the lone federal claim on which jurisdiction in this court was based has been dismissed,

6

IT IS FURTHER ORDERED that the remainder of this case is REMANDED back to the Eighth

7

Judicial District Court, Case No. A13-676820, for all further proceedings

8

Dated this 22nd day of September, 2014.

9
10
11

_________________________________
JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11