Mittal v. County of Clark

Filing 130

ORDER granting 64 Joinder to Motion to Dismiss with prejudice without leave to amend as futile. Dr. Robert A Kilpatrick and Marc O'Connor terminated. Signed by Judge Kent J. Dawson on 5/4/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RAJA MITTAL,

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Plaintiff,

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v.

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Case No. 2:15-CV-01037-KJD-VCF

ROBERT KILPATRICK, M.D., MARC
O’CONNOR, M.D., et al.,

ORDER

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Defendants.
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Presently, before the Court is the Joinder (#64) of Defendants Robert A. Kilpatrick and Marc

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O’Connor to Defendants Michael O. Nyarko and Wiliam Downey’s Motion to Dismiss (#49), Clark

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County Defendant’s Motion to Dismiss (#52) and Defendant Katowich’s Motion to Dismiss (#53).1I.

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Background

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This case arises out of Plaintiff’s claims that Defendants conspired in violation of his

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constitutional rights to deprive him of custody of his minor son X.X. Plaintiff contested custody of

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his son in family court and fought a lengthy custody battle forced by charges of abuse in juvenile

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court. Though Plaintiff initially asserted that his ex-wife and her father were abusing his son X.X.,

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Child Protective Services (“CPS”) later brought an adversary proceeding against Plaintiff in juvenile

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Joinders are a disfavored form of motion practice.

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court asserting that X.X. was harmed by Plaintiff’s behavior. Eventually, Plaintiff and the State

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settled the claims with Plaintiff Raja Mittal admitting liability on a claim of educational neglect. As

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part of that settlement, no further civil or criminal claims were brought against him. However, Mittal

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would be required to take sexual boundaries classes. Mittal claims that he was deceived about those

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classes and would not have entered into the settlement agreement if he had known.

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Plaintiff then filed the present action claiming that virtually every one ever involved in those

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proceedings – from doctors, to social workers, to his own attorney – were involved in a grand

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conspiracy to deprive him of access to X.X. and to hide the sexual abuse that Mittal alleged X.X.’s

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maternal grandfather was inflicting on him. The decision of the juvenile court finding Plaintiff liable

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on a charge of educational neglect has never been overturned.
Doctors Kilpatrick and O’Connor have been named as Defendants in this case. In the seventy-

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two (72) page complaint only one paragraph contains factual allegations against Kilpatrick and

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O’Connor. See First Amended Complaint, Doc. No. 48, p. 40, l. 18-28. That paragraph alleges that

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Dr. Kilpatrick gave a false statement to the police. It also alleges that O’Connor and Kilpatrick spent

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less than a minute superficially examining X.X. when he was brought to the emergency room.

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Doctors Kilpatrick and O’Connor are named as Defendants – as all defendants are named –

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in Plaintiff’s First through Fourth Causes of Action for various violations of Plaintiff’s constitutional

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rights, conspiracy to deny Plaintiff of his constitutional rights, and failure to prevent the deprivation

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of Plaintiff’s constitutional rights. Kilpatrick and O’Connor are also included, generally, in Plaintiff’s

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Seventh Cause of Action for negligence per se, and Fourteenth Cause of Action for medical

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malpractice. Plaintiff essentially alleges the doctors acted negligently when examining X.X.

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Defendants Downey and Nyarko filed a motion to dismiss Plaintiff’s First Amended

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Complaint asserting that they are not state actors subject to liability under civil rights claims, the

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medical claims are time-barred, and the malpractice claims are “void ab initio” due to Plaintiff’s

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failure to include an affidavit by a medical expert that supports the allegations of the action.

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Defendants Kilpatrick and O’Connor filed the present motion to join the motion to dismiss.
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II. Standard for a Motion to Dismiss

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In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as

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true and construed in a light most favorable to the non-moving party.” Wyler Summit Partnership v.

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Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).

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Consequently, there is a strong presumption against dismissing an action for failure to state a claim.

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See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).

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

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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the

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context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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The Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the

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allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations

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which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the

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Court considers the factual allegations “to determine if they plausibly suggest an entitlement to

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relief.” Id. at 1951. If the allegations state plausible claims for relief, such claims survive the motion

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to dismiss. Id. at 1950.

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III. Analysis

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In his First through Fourth Causes of Action, Plaintiff alleges that all Defendants: (1)

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deprived him of his constitutional rights, 42 U.S.C. § 1983; (2) conspired to prevent justice, 42

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U.S.C. 1985(2); (3) conspired to deprive him of his rights and privileges, 42 U.S.C. § 1985(3); and,

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(4) failed to prevent the alleged wrongs that were conspired to be done against him, 42 U.S.C. §

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1985. Additionally, Plaintiff alleges negligence per se against all Defendants, and medical

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malpractice against several Defendants including Doctors Kilpatrick and O’Connor.

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A.

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Defendants Kilpatrick and O’Connor argue that Plaintiff’s first four causes of action fail to

Civil Rights Claims

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state a claim upon which relief can be granted. Plaintiff’s first cause of action arises under 42 U.S.C.

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§ 1983. In order to bring a § 1983 claim, Plaintiff must allege two essential elements: (1) that a

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constitutional or legal right was violated; and (2) that the violation was “committed by a person

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acting under the color of State law.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.

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2006). Plaintiff has failed to allege that Defendants Kilpatrick and O’Connor acted “under the color

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of state law.” Further, Plaintiff failed to oppose Kilpatrick and O’Connor’s argument that they are

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not state actors. Plaintiff’s First Cause of Action against Kilpatrick and O’Connor must be dismissed.

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Plaintiff’s Second and Third Causes of Action arise under 42 U.S.C. § 1985. Violation of §

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1985 requires allegations that Defendants conspired to impede the due course of justice with the

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intent of depriving Plaintiff of equal protection of the law. See 42 U.S.C. § 1985(2-3). However, the

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only allegations that directly implicate Defendants Kilpatrick and O’Connor involve the allegedly

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insufficient medical treatment given to X.X. Plaintiff has not made sufficient factual allegations to

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show that he is entitled to relief. Iqbal, 556 U.S. at 679. Therefore, Plaintiff’s Second and Third

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Causes of Action against Kilpatrick and O’Connor must be dismissed.

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Finally, Plaintiff’s Fourth Cause of Action arises under 42 U.S.C. § 1986. This section

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provides a private action for failure to prevent a violation of § 1985. See 42 U.S.C. § 1986. Here, the

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base assertion that they must have known of a global conspiracy is insufficient to state a claim for

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relief against any of these Defendants. The Fourth Cause of Action against Kilpatrick and O’Connor

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must be dismissed.

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B.

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Plaintiff has not plead sufficient factual allegations to determine the basis of his negligence

Negligence Per Se Claims

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per se claims against Doctors Kilpatrick and O’Connor. Plaintiff merely claims that all “Defendants

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had an affirmative obligation to conduct meaningful investigation of the sex abuse allegations.”

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Without further details concerning the Doctors involvement, this is merely an unsupported
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conclusory statement. Iqbal, 556 U.S. at 678. Consequentially, this Court cannot, and need not,

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determine whether Plaintiff’s negligence per se claim is subject to the statutory requirements of 41A

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as it independently fails to state a claim upon which relief can be granted. Id.

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C.

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Nevada Revised Statute §41A requires that any action for professional negligence be filed

Medical Malpractice Claims

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with an affidavit from a medical expert that supports the allegations contained in the action. NRS §

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41A.071. Section 41A also serves as the statue of limitations for claims of medical malpractice. NRS

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§ 41A.097. “[A]n action for injury against a provider of health care may not be commenced more

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than 3 years after the date of injury or 1 year after the plaintiff discovers... the injury, whichever

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occurs first.” NRS § 41A.097(2). Plaintiff did not file the required affidavit and so his medical

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malpractice claims must be dismissed. NRS § 41A.071.

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D.

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If the Court was not dismissing the state law claims based on their merit, it would decline to

Supplemental Jurisdiction

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exercise supplemental jurisdiction over them, because all of the civil rights and statutory federal

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claims have been dismissed. A district court has discretion to decline to exercise supplemental

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jurisdiction over a claim if all claims over which it has original jurisdiction have been dismissed or if

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the claim raises a novel or complex issue of state law. See 28 U.S.C. § 1367(c).

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IV. Conclusion

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Accordingly, IT IS HEREBY ORDERED that Defendants Dr. Kilpatrick and O’Connor’s
Joinder (#49) seeking dismissal of claims against them is GRANTED;

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IT IS FURTHER ORDERED that all claims against Defendants Kilpatrick and O’Connor are

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DISMISSED with prejudice without leave to amend as futile;

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IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for these
Defendants and against Plaintiff.
DATED this 4th day of May 2017.

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_____________________________
Kent J. Dawson
United States District Judge

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