Perez et al v. Cox et al

Filing 72

ORDER. IT IS ORDERED that 33 34 the motion to dismiss is GRANTED. The complaint is dismissed without prejudice. The plaintiffs may file an amended complaint to cure the deficiencies pointed out in this Order, if they have sufficient facts to do so. If an amended complaint is not filed within 21 days of the entry of this Order, the case will be closed and judgment will be entered. Signed by Judge Andrew P. Gordon on 9/12/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No. 2:15-cv-01572-APG-CWH
VICTOR PEREZ, as Special
Administrator of the Estate of CARLOS
PEREZ, deceased, et al.,
Plaintiffs,

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ECF Nos. 33, 34

v.
STATE OF NEVADA, et al.,
Defendants.

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ORDER GRANTING DEFENDANTS’
MOTION TO DIMISS

This action arises from the death of inmate Carlos Perez on November 12, 2014. Perez
was shot with birdshot while in the custody of the Nevada Department of Corrections (“NDOC”)
at High Desert State Prison (“HDSP”). The plaintiffs are Carlos’s brother, Victor Perez, and his
mother, Myra Perez. Victor Perez brings claims on behalf of Carlos’s estate, and as the guardian
ad litem to Perez’s two minor children, Sophia and Alexander Perez. The plaintiffs bring this
action against the State of Nevada and seven NDOC employees in their individual capacities,
including (1) Greg Cox, former Director of NDOC; (2) Dwight Neven, Warden at HDSP; (3)
Timothy Filson, Assistant Warden at HDSP; and (4) Ronald Oliver, a Corrections Officer (“CO”)
at HDSP.1
The plaintiffs assert claims against all the defendants for: (1) excessive force and
deliberate indifference to serious medical needs, under 42 U.S.C. § 1983; (2) wrongful death
under Nevada Revised Statutes § 42.085; and (3) intentional infliction of emotional distress
(“IIED”). The complaint also asserts a claim of negligent training, supervision, and retention
against defendants State of Nevada, Cox, and Neven.

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The complaint also names COs Ramos, Castro, and Smith (no first names given in the
complaint). These defendants have not moved for dismissal or summary judgment.

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Defendants State of Nevada, Cox, Neven, Filson, and Oliver (collectively, the “NDOC

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Defendants”) have moved for dismissal and for summary judgment based on lack of standing,

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qualified immunity, discretionary immunity, and failure to state a claim. Discovery in this matter

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began in April 2016 but was stayed in June 2016 pending my decision on this motion. See ECF

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Nos. 56, 70.
Summary judgment is premature at this time, prior to the plaintiffs having a chance to

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conduct discovery. However, I grant the NDOC Defendants’ motion to dismiss without

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prejudice. The plaintiffs may amend the complaint to add factual allegations to support their

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claims.

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I.

BACKGROUND
On November 12, 2014, Carlos Perez was in protective custody at HDSP in the

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administrative segregation unit. ECF No. 1-4 at 6. Perez and inmate Andrew Arevalo were

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allegedly being moved between the showers and their individual cells when a fight broke out

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between them. Id. The complaint alleges that the two inmates began yelling and kicking each

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other, with their hands handcuffed behind their backs. Id. The plaintiffs claim that COs Castro

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and Smith refused to intervene. Id. Rather than separating the handcuffed inmates, COs Castro

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and Smith instead allegedly “created a gladiator-like scenario and allowed the inmates to fight.”

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Id. The plaintiffs claim that, eventually, CO Castro ordered CO Ramos to “deploy lethal force”

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against Perez. Id. at 7. Upon hearing this command, CO Ramos allegedly “grabbed his shotgun”

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and shot Perez with birdshot, killing him. Id. The plaintiffs allege that CO Ramos continued to

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shoot at Perez even after he was on the ground and that CO Ramos used “unreasonable,

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unnecessary, excessive, and deadly force.” Id.

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The complaint alleges that the defendants violated NDOC policy and procedure by having two

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inmates out of their cells at the same time and that the individual defendants should have been

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adequately trained and supervised to use less lethal means of force Id. at 7, 9. The plaintiffs also

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allege that NDOC’s actual policies, customs, and practices encourage the use of deadly force in

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non-deadly situations, and that these policies, customs, and practices led to Perez’s death. Id. at 3-

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4, 7. They allege that the defendants’ use of force was not done in a good-faith effort to maintain

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discipline, and that the decision to use force was made pursuant to NDOC’s “unconstitutional

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policies to deploy deadly force in situations that do not require such force.” Id. at 9. The

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complaint also claims that the defendants were deliberately indifferent to Perez’s serious medical

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needs by denying him proper treatment after the shooting. Id.

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II.

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LEGAL STANDARD
A properly pleaded complaint must provide a “short and plain statement of the claim

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showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands

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more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of

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action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Factual allegations must be enough to rise

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above the speculative level.” Twombly, 550 U.S. at 555. In order to survive dismissal for failure

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to state a claim pursuant to Rule 12(b)(6), a complaint must “contain[ ] enough facts to state a

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claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 696 (internal quotation and citations

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omitted).

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I apply a two-step approach when considering motions to dismiss. Id. at 679. First, I must

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accept as true all well-pleaded factual allegations and draw all reasonable inferences from the

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complaint in the plaintiff’s favor. Id.; Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247-48 (9th Cir.

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2013). Legal conclusions, however, are not entitled to the same assumption of truth even if cast

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in the form of factual allegations. Iqbal, 556 U.S. at 679; Brown, 724 F.3d at 1248. Mere recitals

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of the elements of a cause of action, supported only by conclusory statements, do not suffice.

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Iqbal, 556 U.S. 678.

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Second, I must consider whether the factual allegations in the complaint allege a plausible

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claim for relief. Id. at 679. A claim is facially plausible when the complaint alleges facts that

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allow the court to draw a reasonable inference that the defendant is liable for the alleged

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misconduct. Id. at 663. Where the complaint does not permit the court to infer more than the

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mere possibility of misconduct, the complaint has “alleged—but it has not shown—that the

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pleader is entitled to relief.” Id. at 679 (internal quotation and citation omitted). When the claims

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have not crossed the line from conceivable to plausible, the complaint must be dismissed.

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Twombly, 550 U.S. at 570. “Determining whether a complaint states a plausible claim for relief

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will . . . be a context-specific task that requires the [district] court to draw on its judicial

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experience and common sense.” Iqbal, 556 U.S. at 679.
If I dismiss a claim, I must next determine whether to allow amendment to cure the

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claim’s deficiencies. I have discretion to grant leave and should freely do so “when justice so

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requires.” Fed. R. Civ. P. 15(a)(2); see also Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th

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Cir. 1990). I may deny leave to amend if: (1) it will cause undue delay; (2) it will cause undue

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

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

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

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III.

ANALYSIS

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1. Summary Judgment Analysis under Rule 56 is Premature

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Pursuant to Rule 56, a party can file a motion for summary judgment “at any time” and

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does not have to wait for discovery to commence or conclude. Fed. R. Civ. P. 56. However,

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despite the plaintiffs’ failure to properly file a Rule 56(d) motion, entertaining a motion for

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summary judgment at this stage would be premature.

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Discovery in this case was open for only a short period of time before it was stayed

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pending my decision on this motion. Thus, the plaintiffs have not had a meaningful opportunity

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to conduct discovery. See Moore v. Hubbard, No. CIV S-06-2187-FCD-EFB, 2009 WL 688897

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at *1 (E.D. Cal., Mar. 13, 2009). The NDOC Defendants filed their motion with a very limited

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record of pre-discovery documents. Based solely on the limited record before me, I cannot

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determine whether there are no disputed issues of material fact. Additionally, the NDOC

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Defendants argue that many of the supporting documents submitted by the plaintiffs are

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unauthenticated. Presumably with more time to conduct discovery, the plaintiffs will be able to

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authenticate their documents. Thus, the procedural status of this case renders summary judgment

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inappropriate at this time. I therefore will consider the motion as one to dismiss under Rule

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12(b)(6). The NDOC Defendants may renew their motion for summary judgment after sufficient

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time for discovery has passed.

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2. Rule 12(b)(6)
a. Failure to State Claim

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The NDOC Defendants argue that the § 1983 claim must be dismissed because vicarious

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liability is inapplicable to such claims and the plaintiffs have failed to assert either a direct link or

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causal connection between the defendants’ conduct and the plaintiffs’ claims. They further

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contend that the plaintiffs’ intentional tort claims must be dismissed because there are no

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allegations of direct participation by the NDOC Defendants. The NDOC Defendants also

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contend that the plaintiffs have failed to plead specific facts indicating how the NDOC

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Defendants breached their duty to Perez because there is no evidence they knew that the COs

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were acting negligently. Thus, they argue the negligent training and supervision claim must be

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dismissed.

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The plaintiffs respond with numerous factual allegations that were not pleaded in the

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complaint. They argue that a causal connection exists between the unconstitutional violations and

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the NDOC Defendants’ conduct because the NDOC Defendants created and promulgated the

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policies, customs, and practices which led to Perez’s death. They contend that despite NDOC’s

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written policies, the actual widespread practices and customs at HDSP were to have inmates out

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of their cells at the same time, and to use excessive and unreasonable force to maintain order.

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The plaintiffs’ complaint does not plausibly allege any of their claims against the NDOC

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Defendants who were not directly involved in the shooting. Most of the factual allegations in the

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plaintiffs’ opposition are not alleged in the complaint. The complaint itself is not sufficiently

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descriptive and does not include enough factual allegations regarding the NDOC Defendants to

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support the claims and to allow me to draw a reasonable inference that the NDOC Defendants are

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liable. For example, it is not clear from the complaint which specific NDOC policies, practices,

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and customs the plaintiffs believe are unconstitutional. From their opposition, it appears that they

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are alleging that NDOC’s written policies differ widely from NDOC’s actual practices and

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customs. But this is not clear from the complaint. Similarly, the opposition contains detailed

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factual allegations related to the plaintiffs’ claim of deliberate indifference to serious medical

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needs, but none of these facts is alleged in the complaint. Nor does the complaint contain factual

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allegations tying the NDOC Defendants to the plaintiffs’ claim that Perez was denied proper

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medical care. The vast majority of the allegations in the complaint are pleaded as to all

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defendants and do not distinguish between the actions of the COs involved in the shooting and the

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other supervisory defendants who were not present but may be liable based on other facts.

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The opposition also contains numerous factual allegations that the COs acted with the

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malicious intent to harm and not to maintain order, and did so based on the widespread practices

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and customs of NDOC. But, again, these allegations are not contained in the complaint. Because

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the plaintiffs appear to have unpleaded factual allegations to support their claims, the motion to

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dismiss is granted but the plaintiffs will be permitted to amend their complaint to cure the factual

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deficiencies.
b. Qualified and Discretionary Immunity

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The NDOC Defendants also argue that qualified and discretionary immunity bar the

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claims against them. Because the complaint fails to allege sufficient facts to support the

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plaintiffs’ claims, it is impossible to determine whether discretionary or qualified immunity

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would apply. I therefore deny the NDOC Defendants’ request for qualified and discretionary

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immunity without prejudice. The defendants can reassert these arguments once the complaint has

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been amended.

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c. State of Nevada – Improperly Named in Complaint
The NDOC Defendants argue that as a sovereign, the State of Nevada is immune from

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lawsuits except in limited circumstances. They argue that Nevada law requires any suit against

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the State of Nevada to be brought against the state agency whose actions are the basis of the suit

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in order to invoke the State’s waiver of sovereign immunity. Because the complaint names only

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the State of Nevada and various NDOC personnel in their individual capacities (but does not

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name NDOC as the relevant state agency), they contend the State of Nevada was improperly

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named. In response, the plaintiffs argue that the State of Nevada waived its sovereign immunity

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under the Eleventh Amendment when it removed the action to federal court.
Under N.R.S. § 41.031(2), actions brought against the State of Nevada “must be brought

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in the name of the State of Nevada on relation of the particular department, commission, board or

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other agency of the State whose actions are the basis for the suit.” In this case, the relevant state

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agency would be NDOC. Because I am granting the plaintiffs leave to amend the complaint, the

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plaintiffs should comply with N.R.S. § 41.031(2).
d. Standing in Wrongful Death Claim

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The NDOC Defendants argue that plaintiff Myra Perez (Carlos Perez’s mother) lacks

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standing to bring an individual claim for wrongful death. They contend that under Nevada law

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only “heirs” may assert an action for wrongful death, and Myra Perez has not alleged she is

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Perez’s heir.
The plaintiffs do not respond to this argument, but they argue that Myra Perez has

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“personal standing” because “parents have a liberty interest in the companionship of their adult

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children and a cause of action under the Fourteenth Amendment.” ECF No. 60 at 16. However,

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the complaint contains no Fourteenth Amendment loss of companionship claim. Nor do the

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plaintiffs explain what relevance this has to their state law wrongful death claim.
Under Nevada law, only “heirs” may assert an action for wrongful death. N.R.S. § 41.085.

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N.R.S. § 41.085 states that, “[a]s used in this section, ‘heir’ means a person who, under the laws

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of this State, would be entitled to succeed to the separate property of the decedent if the decedent

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had died intestate.” The complaint does not plead that Myra Perez is Perez’s heir, and it does not

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appear that she is his heir. Rather, the complaint pleads that Victor Perez brings claims on behalf

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of Carlos’s estate and as the guardian ad litem to Carlos’s two minor children. I therefore grant

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the NDOC Defendants’ motion on this ground and dismiss the wrongful death claim asserted by

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Myra Perez.

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IV.

CONCLUSION

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IT IS THEREFORE ORDERED that the motion to dismiss (ECF Nos. 33, 34) is

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GRANTED. The complaint is dismissed without prejudice. The plaintiffs may file an amended

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complaint to cure the deficiencies pointed out in this Order, if they have sufficient facts to do so.

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If an amended complaint is not filed within 21 days of the entry of this Order, the case will be

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closed and judgment will be entered.

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DATED this 12th day of September, 2016.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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