Garcia v. Las Vegas Metropolitian Police Department et al

Filing 43

SCREENING ORDER. Defendant Sunrise Medical Hospital and Naphcare, Inc. are DISMISSED without prejudice and with leave to amend. Second Amended Complaint due by 3/22/2019.If Plaintiff chooses not to file a Second Amended Complaint the Clerk of Cour t will be instructed to issue summons for Defendant Susanne Roozendaal and Garcia will be directed to serve her with summons and the 42 First Amended Complaint. (see Order re claims). Signed by Magistrate Judge Peggy A. Leen on 2/20/2019. (Copies have been distributed pursuant to the NEF - Complaint instructions/form, 42 , and this Order mailed to Plaintiff - SLD)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

MANUEL GARCIA,

Case No. 2:17-cv-02504-APG-PAL

8

Plaintiff,

9
10
11

SCREENING ORDER

v.
(1st Am. Compl. – ECF No. 42)
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,
Defendants.

12
13

This matter is before the court for a screening of Plaintiff Manuel Garcia’s First Amended

14

Complaint (ECF No. 42). This screening is referred to the undersigned pursuant to 28 U.S.C.

15

§ 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.

16

Mr. Garcia is a pro se prisoner in the custody of the Nevada Department of Corrections at

17

High Desert State Prison. This is a civil rights action arising from Garcia’s allegations, pursuant

18

to 28 U.S.C. § 1983, regarding his medical treatment prior to arrest and while incarcerated at the

19

Clark County Detention Center (“CCDC”). Garcia filed his original complaint in the Eighth

20

Judicial District Court of Nevada. The defendants subsequently removed the case to this court and

21

requested a screening of Garcia’s complaint before an answer or responsive pleading is required.

22

ECF No. 3. The court granted the request and noted that the complaint would be screened in due

23

course. Order (ECF No. 25). Garcia later received leave of the court to amend his complaint. The

24

court will now screen his First Amended Complaint.

25

I.

SCREENING THE COMPLAINT

26

Federal courts must screen any IFP complaint or amended complaint before allowing the

27

case to move forward, issuing summons, and requiring an answer or responsive pleading. 28

28

U.S.C. § 1915; Jones v. Bock, 549 U.S. 199, 213–14 (2007). The court must conduct a preliminary
1

1

screening in any case in which a prisoner seeks redress from a governmental entity or officer or

2

employee of a governmental entity. 28 U.S.C. § 1915A(a). In its screening, the court must identify

3

any plausible claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon

4

which relief may be granted, or seek monetary relief from a defendant who is immune from such

5

relief. 42 U.S.C. § 1997e (Prison Litigation Reform Act of 1995 (PLRA)); 28 U.S.C. § 1915A(b).

6

Allegations in a pro se complaint are held to less stringent standards than formal pleading drafted

7

by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Byrd v. Phoenix Police Dep’t, 885 F.3d

8

639 (9th Cir. 2018). However, pro se litigants “should not be treated more favorably than parties

9

with attorneys of record,” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); rather, they

10

must follow the same rules of procedure that govern other litigants. Ghazali v. Moran, 46 F.3d

11

52, 54 (9th Cir. 1995). When a court dismisses a complaint on the initial screening, the plaintiff

12

is ordinarily given leave to amend the complaint with directions as to curing its deficiencies, unless

13

it is clear from the face of the complaint that the deficiencies could not be cured by amendment.

14

Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

15

A. Garcia’s Factual Allegations and Claims for Relief

16

The First Amended Complaint (ECF No. 42) names as defendants (1) Las Vegas

17

Metropolitan Police Department (“LVMPD”), (2) Officer Brandon Prisbrey, (3) Sunrise Medical

18

Hospital (the “Hospital”), (4) Sheriff Joe Lombardo, (5) Dr. Susanne Roozendaal, (6) NaphCare,

19

Inc., and (7) “John Doe,” a “NaphCare Doctor” who treated Garcia at CCDC. Mr. Garcia asserts

20

that defendants violated his civil rights under the Eighth and Fourteenth Amendments pursuant to

21

42 U.S.C. § 1983, and committed intentional torts pursuant to state law.

22

The First Amended Complaint alleges that Garcia was significantly injured on January 3,

23

2016, in a motor vehicle accident that caused multiple bone fractures. 1st Am. Compl. at 5. Officer

24

Prisbrey followed or transported Garcia to the Hospital. Id. The fractures caused Garcia great

25

pain and necessitated intravenous morphine; thus, he was “psychologically discombobulated.” Id.

26

Dr. Roozendaal treated Garcia’s injuries and diagnosed his ankle fracture. Id. He alleges Dr.

27

Roozendaal should have admitted him to the Hospital to immediately receive corrective orthopedic

28

surgery but Officer Prisbrey interfered. Id. Dr. Roozendaal followed the officer’s direction and
2

1

discharged Garcia from the Hospital. Id.

2

Upon discharge, Officer Prisbrey transported Garcia to CCDC where he was booked on

3

criminal charges. Id. at 5. Garcia was immediately admitted to CCDC’s infirmary, which is

4

administered by NaphCare. Id. at 6. He repeatedly requested that NaphCare facilitate a surgery

5

on his ankle. Id. Doctor “John Doe” purportedly told Garcia that he would not refer him “for

6

surgery transport to UMC due to lack of referal [sic] and due to costs associated with the necessary

7

procedures.” Id. Thus, Garcia was forced to apply traction and straighten out his own ankle. Id.

8

He claims he repeatedly submitted medical requests but was denied grievance forms. Id. Garcia

9

stayed in the CCDC infirmary from January 3 to February 4, 2016, after which he was moved to

10

the infirmary at High Desert State Prison. Id. As a result of the defendants’ misconduct, Garcia

11

asserts that his right ankle is permanently disfigured, he has lost full mobility, and his ankle causes

12

him excruciating pain. Id.

13

In Count I, Garcia claims that LVMPD, Officer Prisbrey, Sheriff Lombardo, the Hospital,

14

Dr. Roozendaal, and NaphCare violated his Eighth and Fourteenth Amendment rights. Officer

15

Prisbrey purportedly interfered with Garcia’s medical treatment by instructing Dr. Roozendaal to

16

discharge him. Id. Dr. Roozendaal allegedly prescribed surgery, but discharged Garcia in

17

deliberate indifference to his medical needs. Id. at 5–6. NaphCare Dr. John Doe acted with

18

deliberate indifference by refusing to send Garcia to surgery due to the cost of the procedure. Id.

19

at 6. NaphCare was deliberately indifferent to his medical needs because he “was denied medically

20

necessary and previously prescribed surgery” in order to save money. Id. In addition, Garcia

21

alleges Sheriff Lombardo entered into a contract with NaphCare to save money knowing that

22

NaphCare is the subject of numerous lawsuits/investigations for deliberate indifference to

23

detainee’s medical needs. Id. As chief policy maker, Sheriff Lombardo purportedly failed to

24

create policies that ensure timely and adequate medical care to detainees at CCDC. Id.

25
26

Count II alleges a state law claim against all the defendants for gross negligence and/or
negligence. Id. at 7.

27

In Count III, Garcia alleges that the defendants acted with reckless disregard and caused

28

him substantial physiological/psychological pain and emotional distress. Id. at 8. Thus, he alleges
3

1

a state law claim against all the defendants for intentional infliction of emotional distress. Id.

2

In Count IV, Mr. Garcia alleges that LVMPD, Sheriff Lombardo, the Hospital, and

3

NaphCare are principals who acted through their agents, Officer Prisbrey, Dr. John Doe, and Dr.

4

Roozendaal. Id. at 9. As a result of the principals’ negligent or reckless training and supervision

5

of their agents, Garcia suffered substantial harm. Thus, he asserts a claim for supervisory liability.

6

In his request for relief, Mr. Garcia seeks $200,000 in compensatory damages for each

7

count and various “exemplary” damages. Id. at 13.

8

B. Legal Standard

9

Federal courts are required to dismiss an IFP action if the complaint fails to state a claim

10

upon which relief may be granted, is legally “frivolous or malicious,” or seeks monetary relief

11

from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In determining whether

12

a complaint is frivolous and therefore warrants complete or partial dismissal, a court is not bound

13

to accept without question truth of plaintiff’s allegations. Denton v. Hernandez, 504 U.S. 25, 32

14

(1992). Allegations are frivolous when they are “clearly baseless,” id., or lack an arguable “basis

15

in law or fact.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Frivolous claims include

16

those based on legal conclusions that are untenable (e.g., claims against defendants who are

17

immune from suit or claims of infringement of a legal interest that clearly does not exist), as well

18

as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). Neitzke v.

19

Williams, 490 U.S. 319, 327–28 (1989). Malicious claims are those “filed with the intention or

20

desire to harm another.” King, 398 F.3d at 1121.

21

The standard for determining whether a plaintiff has failed to state a claim under §§ 1915

22

and 1915A is the same as the standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure1

23

for failure to state a claim. See El-Shaddai v. Zamora, 833 F.3d 1036, 1043 (9th Cir. 2016) (“The

24

phrase ‘fails to state a claim upon which relief may be granted’ from § 1915(g) purposely ‘parallels

25

the language of Federal Rule of Civil Procedure 12(b)(6)’.”) (quoting Andrews, 398 F.3d at 1121);

26

Washington v. L.A. County Sheriff’s Dep’t, 833 F.3d 1048, 1055–56 (9th Cir. 2016). A district

27

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

28

1

All references to a “Rule” or the “Rules” in this Order refer to the Federal Rules of Civil Procedure.

4

1

granted.” Fed. R. Civ. P. 12(b)(6). Review under Rule 12(b)(6) is essentially a ruling on a question

2

of law. North Star Intern. v. Ariz. Corp. Comm’n, 720 F.2d 578, 580 (9th Cir. 1983). For purposes

3

of a Rule 12(b)(6) review, well-plead factual allegations are accepted as true, but vague allegations,

4

unreasonable inferences, and legal conclusions are not entitled to the assumption of truth. Teixeira

5

v. County of Alameda, 873 F.3d 670, 678 (9th Cir. 2017) (citing Ashcroft v. Iqbal, 556 U.S. 662,

6

680 (2009); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007)).

7

A properly pled complaint must provide “a short and plain statement of the claim showing

8

that the pleader is entitled to relief” as well as the grounds for the court’s jurisdiction and a demand

9

for relief. Fed. R. Civ. P. 8(a). To avoid dismissal on a Rule 12(b)(6) review, a plaintiff must

10

allege enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v.

11

Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when a plaintiff alleges factual

12

content that allows the court to make a reasonable inference that a defendant is liable for the

13

misconduct alleged. Teixeira, 873 F.3d at 678 (quoting Iqbal, 556 U.S. at 678). This plausibility

14

standard is not a “ ‘probability requirement,’ but it asks for more than a sheer possibility that a

15

defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

16

Although Rule 8(a) does not require detailed factual allegations, it demands “more than labels and

17

conclusions.” Id. at 678. Merely reciting the elements of a cause of action and providing only

18

conclusory allegations will not be enough to survive the court’s review. Id. at 679–80. The factual

19

allegations “must plausibly suggest an entitlement to relief, such that it is not unfair to require the

20

opposing party to be subjected to the expense of discovery and continued litigation.” Starr v.

21

Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). A complaint should be dismissed where the claims

22

have not crossed the line from conceivable to plausible. Twombly, 550 U.S. at 570.

23

C. Analysis

24

For the reasons discussed below, the court finds that certain counts alleged in the First

25

Amended Complaint fail to state a plausible claim against one or more defendants. However,

26

because it is possible that Mr. Garcia may be able to adequately allege those claims, if sufficient

27

facts exist, the court will grant leave to amend the pleading deficiencies.

28

///
5

1. Count I – Deliberate Indifference to Serious Medical Needs

1
2

42 U.S.C. § 1983 provides a mechanism for the private enforcement of substantive rights

3

conferred by the Constitution and federal statutes. Graham v. Connor, 490 U.S. 386, 393–94

4

(1989). To state a claim under § 1983, a plaintiff must allege: (1) his or her his civil rights were

5

violated, (2) by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48–49

6

(1988). To adequately plead these elements, the complaint must identify what constitutional or

7

other federal right each defendant violated, providing sufficient facts to plausibly support each

8

purported violation. See, e.g., Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (defendants

9

must personally participate in alleged rights deprivation to be liable under § 1983). The “threshold

10

inquiry in a § 1983 suit” requires courts “to ‘identify the specific constitutional right’ at issue.”

11

Manuel v. City of Joliet, 137 S. Ct. 911, 920 (2017) (citing Albright v. Oliver, 510 U.S. 266, 271

12

(1994)). “After pinpointing that right, courts still must determine the elements of, and rules

13

associated with, an action seeking damages for its violation.” Id. (citation omitted); Cassettari v.

14

Nevada County, Cal., 824 F.2d 735, 738 (9th Cir. 1987) (“In any section 1983 action, the first

15

question is whether section 1983 is the appropriate avenue to remedy the alleged wrong.”)

16

The Eighth Amendment prohibits the imposition of cruel and unusual punishments against

17

state prisoners and “embodies broad and idealistic concepts of dignity, civilized standards,

18

humanity and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Pretrial detainees are

19

similarly protected by the Fourteenth Amendment’s Due Process Clause. Bell v. Wolfish, 441 U.S.

20

520, 537 n.16 (1979); Olivier v. Baca, 913 F.3d 852, 857–58 (9th Cir. 2019).2 A pretrial detainee

21

or prisoner’s claim of inadequate medical care may state a plausible § 1983 claim if the alleged

22

mistreatment rises to the level of “deliberate indifference to serious medical needs.” Estelle, 429

23

U.S. at 106; Gordon v. County of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). Delay of, or

24

interference with, medical treatment can also amount to deliberate indifference. See Jett v. Penner,

25

439 F.3d 1091, 1096 (9th Cir. 2006). The court evaluates these claims under an objective

26
27
28

2

Although the Fourteenth Amendment applies to pretrial detainees, rather than the Eighth Amendment,
courts apply many of the same principles to both convicted prisoners and pretrial detainees. Simmons v.
Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010) (citing Bell, 441 U.S. at 537 n.16); see also City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).

6

1

deliberate indifference standard. Gordon, 888 F.3d at 1125 (citing Castro v. County of Los

2

Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016) (en banc)). To state a plausible claim for inadequate

3

medical care, a pretrial detainee must allege four elements:
(i) the defendant made an intentional decision with respect to the conditions under
which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial
risk of suffering serious harm; (iii) the defendant did not take reasonable available
measures to abate that risk, even though a reasonable official in the circumstances
would have appreciated the high degree of risk involved—making the
consequences of the defendant’s conduct obvious; and (iv) by not taking such
measures, the defendant caused the plaintiff’s injuries.”

4
5
6
7
8

Id.3

9

Mr. Garcia has adequately alleged that Officer Prisbrey, Dr. Roozendaal, and Dr. John Doe

10

were deliberately indifferent to his serious medical needs. 1st Am. Compl. at 5–6. He alleges that

11

Officer Prisbrey interfered with Garcia’s medical treatment by instructing Dr. Roozendaal to

12

discharge him. Dr. Roozendaal allegedly diagnosed Garcia’s ankle fracture and prescribed

13

surgery, but ignored the treatment plan by following Officer Prisbrey’s instruction to discharge

14

Garcia. Dr. John Doe refused to send Garcia to surgery due to the cost of the procedure. For

15

screening purposes, Garcia’s allegations state a plausible claim for inadequate medical care.4
2. Counts I and IV – Supervisor and Municipal Liability Under Monell

16
17

Count IV and a portion of Count I allege supervisory liability. 1st Am. Compl. at 5–6, 9.

18

Mr. Garcia alleges that LVMPD, Sheriff Lombardo, the Hospital, and NaphCare are principals

19

who acted with “reckless disregard” through their agents, Officer Prisbrey, Dr. John Doe, and Dr.

20

Roozendaal. Garcia claims he suffered harm as a result of the principals’ negligent or reckless

21

training and supervision of their agents.
The failure to train or supervise government employees may serve as a basis for liability

22
23
3

24
25
26
27
28

The third element requires the defendant’s conduct to be “objectively unreasonable,” a test that turns on
the facts and circumstances of each particular case. Gordon, 888 F.3d at 1125 (citing Castro, 833 F.3d at
1071; Kingsley v. Hendrickson, --- U.S. ---, 135 S. Ct. 2466 (2015); Graham, 490 U.S. at 396). The “ ‘mere
lack of due care by a state official’ does not deprive an individual of life, liberty, or property under the
Fourteenth Amendment.” Castro, 833 F.3d at 1071 (quoting Daniels v. Williams, 474 U.S. 327, 330–31
(1986)). Thus, a plaintiff must show “more than negligence but less than subjective intent—something
akin to reckless disregard.” Gordon, 888 F.3d at 1125.

4

Garcia will be given an opportunity through discovery to identify Dr. John Doe. The claim of deliberate
indifference to a serious medical need will proceed against Dr. Doe when Garcia learns the doctor’s identity.

7

1

when the failure amounts to deliberate indifference to the rights of persons with whom the

2

employees come into contact. Long v. County of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006).

3

However, liability under § 1983 only arises upon a showing of each defendant’s “personal

4

participation.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A defendant may be held

5

liable as a supervisor under § 1983 only if he or she was personally involved in the constitutional

6

deprivation or there is a sufficient causal connection between the supervisor’s wrongful conduct

7

and the constitutional violation. Starr, 652 F.3d at 1207); see also Iqbal, 556 U.S. at 676 (noting

8

that “a plaintiff must plead that each Government-official defendant, through the official’s own

9

individual actions, has violated the Constitution”).

10

In addition, an entity may be found liable under § 1983 only when its policy, practice, or

11

custom inflicts injury upon the plaintiff. City of Canton v. Harris, 489 U.S. 378, 385 (1989). Local

12

governments (such as cities, counties, and other municipalities) and their officials are “among

13

those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91

14

(1978); Miranda v. Clark County, 319 F.3d 465, 469 (9th Cir. 2003) (en banc). In cases where a

15

plaintiff alleges municipal liability, there must be a direct and causal link between a municipal

16

policy, practice, or custom and the alleged constitutional deprivation. City of Canton, 489 U.S. at

17

385; Monell, 436 U.S. at 691 (concluding that “a municipality cannot be held liable solely because

18

it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on

19

a respondeat superior theory”).5 “It is not sufficient for a plaintiff to identify a custom or policy,

20

attributable to the municipality, that caused his injury. A plaintiff must also demonstrate that the

21

custom or policy was adhered to with ‘deliberate indifference’ to the constitutional rights” of the

22

plaintiff. Castro, 833 F.3d at 1076 (quoting City of Canton, 489 U.S. at 392).
a. LVMPD and Sheriff Lombardo

23
24

The First Amended Complaint adequately alleges a municipal liability claim against

25

LVMPD and Sheriff Lombardo. 1st Am. Compl. at 5–6. Garcia alleges that LVMPD and Sheriff

26
27
28

5

“Respondeat Superior” is a Latin phrase meaning “let the superior make answer.” Black’s Law Dictionary
(10th ed. 2014). Under the legal doctrine of respondeat superior (also known as the “master-servant rule”),
an employer or principal may be held liable “for the employee’s or agent’s wrongful acts committed within
the scope of the employment or agency.” Id.

8

1

Lombardo and entered into a contract with NaphCare to save money knowing that NaphCare is

2

the subject of numerous lawsuits/investigations for deliberate indifference to detainee’s medical

3

needs. As chief policy maker, Sheriff Lombardo purportedly failed to create policies that ensure

4

timely and adequate medical care to detainees at CCDC. However, Garcia’s allegations do not

5

state a plausible claim for failure to train or supervise. He alleges without factual support that

6

LVMPD and Sheriff Lombardo’s negligent or reckless training and supervision of their agents

7

caused Garcia substantial harm.

8

b. NaphCare

9

Mr. Garcia’s allegations against NaphCare fail to state a plausible claim. Naphcare is a

10

government contractor which provides healthcare for CCDC detainees and acts under color of law

11

pursuant to § 1983. Garcia claims NaphCare was deliberately indifferent to his medical needs by

12

denying him medically necessary and previously prescribed surgery in order to save money. He

13

alleges he “repeatedly requested that NaphCare provide him with surgery” on his ankle. Id. at 6.

14

However, Garcia indicates that Dr. John Doe is the specific individual who denied him surgery.

15

He further alleges he repeatedly submitted medical requests but was denied grievance forms. Id.

16

Garcia has not alleged that any particular Naphcare statement, policy, practice, decision, or custom

17

exists that violates his constitutional rights or that Dr. John Doe’s conduct was the result of

18

Naphcare’s failure to train or supervise. As such, there is no causal link between his alleged injury

19

and a NaphCare policy or custom that was adhered to with deliberate indifference to the

20

constitutional rights of CCDC’s detainees. See Castro, 833 F.3d at 1076.

21

c. The Hospital

22

Mr. Garcia alleges no facts to support a claim against the Hospital. As an initial matter,

23

the court notes that the Hospital is ordinarily a private party, not a state actor. “A § 1983 claim

24

can be brought only against a state actor.” Amistad Christiana Church v. Life is Beautiful, LLC,

25

132 F. Supp. 3d 1246, 1251 (D. Nev. 2015), aff’d, 692 F. App’x 922 (9th Cir. 2017). Private

26

parties who are not affiliated with a state or municipal government generally do not act under color

27

of law. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011).

28

Government action may be found only if “there is such a ‘close nexus between the State and the
9

1

challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State

2

itself’.” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 955 (9th Cir. 2008) (en banc)

3

(quoting Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)).

4

Second, the First Amended Complaint does not allege any conduct by the Hospital or

5

plausibly establish the Hospital’s knowledge of or acquiescence in that conduct. A plaintiff must

6

plead that each defendant, through their “own individual actions, has violated the Constitution” to

7

establish liability under § 1983. Hydrick v. Hunter, 669 F.3d 937, 941 (9th Cir. 2012). The

8

absence of specific allegations is significant because a plaintiff must allege sufficient facts to

9

“plausibly establish” the defendants’ “knowledge of” and “acquiescence in” the unconstitutional

10

conduct. Id. (citing Starr, 652 F.3d at 1206–07). Garcia alleges without factual support that the

11

Hospital’s negligent or reckless training and supervision of its agents caused him substantial harm.

12

Merely naming the Hospital in the First Amended Complaint is the sort of “bald” and “conclusory”

13

allegations the Supreme Court has determined are insufficient to establish liability under § 1983.

14

See Iqbal, 556 U.S. at 679–80. Dismissal is appropriate where a complaint is devoid of allegations

15

against a defendant. See Starr, 652 F.3d at 1209–11, 1216.

16

3. Count II – Gross Negligence and/or Negligence

17

Mr. Garcia alleges that the defendants’ actions amounted to gross negligence and/or

18

negligence pursuant to NRS 41.031. Compl. at 7. To state a claim for negligence in Nevada, a

19

plaintiff must allege four elements: “(1) the defendant owed the plaintiff a duty of care, (2) the

20

defendant breached that duty, (3) the breach was the legal cause of the plaintiff’s injuries, and (4)

21

the plaintiff suffered damages.” Sadler v. PacifiCare of Nev., 130 Nev. 990, 995, 340 P.3d 1264,

22

1267 (2014); Driscoll v. Erreguible, 87 Nev. 97, 101, 482 P.2d 291, 294 (1971) (“Negligence is

23

failure to exercise that degree of care in a given situation which a reasonable man under similar

24

circumstances would exercise.”). A claim for gross negligence is separate from a negligence

25

claim. Silver State Broad., LLC v. Crown Castle MU, LLC, 2:18-cv-00734-GMN-VCF, 2018 WL

26

6606064, at *4 (D. Nev. Dec. 17, 2018); Gaming v. Trustwave Holdings, Inc., 2:15-cv-02464-

27

GMN-PAL, 2016 WL 5799300, at *6 (D. Nev. Sept. 30, 2016). For gross negligence, “a plaintiff

28

must establish that the defendant failed ‘to exercise even the slightest degree of care’ in his
10

1

conduct.” Id. (quoting Hart v. Kline, 61 Nev. 96, 116 P.2d 672, 673–74 (1941).

2

As alleged, the First Amended Complaint fails to state an actionable negligence or gross

3

negligence claim. 1st Am. Compl. at 5–6. Mr. Garcia fails to allege any facts showing a duty of

4

care, the defendants’ breached their duty, and the defendants’ conduct was the legal cause of his

5

injury, i.e., elements two, three, or four. Thus, Garcia has not plausibly alleged a negligence claim

6

under Nevada law. His conclusory allegations also fail to allege the defendants failed ‘to exercise

7

even the slightest degree of care’ in his conduct.” See Hart, 116 P.2d at 673–74. Accordingly,

8

Garcia’s allegations fail to provide the defendants’ notice of their alleged wrongdoing.

9

4. Count III – Intentional Infliction of Emotional Distress

10

To establish a claim for intentional infliction of emotional distress (“IIED”) in Nevada, a

11

plaintiff must allege: (1) the defendant engaged in “extreme and outrageous conduct with either

12

the intention of, or reckless disregard for, causing emotional distress,” (2) the plaintiff “suffered

13

severe or extreme emotional distress,” and (3) “actual or proximate causation.” Dowers v.

14

Nationstar Mortg., LLC, 852 F.3d 964, 971 (9th Cir. 2017) (quoting Olivero v. Lowe, 116 Nev.

15

395, 995 P.2d 1023, 1025 (2000)). A claim for IIED operates on a continuum: the less extreme

16

the outrage, the greater the need for evidence of physical injury or illness from the emotional

17

distress. Chowdry v. NLVH, Inc., 109 Nev. 478, 483, 851 P.2d 459, 462 (1993). At the ends of

18

this spectrum, conduct is extreme or outrageous if it is atrocious, beyond all possible bounds of

19

decency, and utterly intolerable, Kahn v. Morse & Mowbray, 121 Nev. 464, 478 n.18, 117 P.3d

20

227, 237 n.18 (2005), and emotional distress is severe if it is so intense that no reasonable person

21

could be expected to endure it, Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 (D. Nev. 1993).

22

Initially, it is for the court to determine both whether the conduct alleged is extreme and outrageous

23

and whether each plaintiff has suffered severe emotional distress. Id.

24

To establish severe emotional distress, the Nevada Supreme Court has held that a plaintiff

25

must have “objectively verifiable indicia of the severity of [his] emotional distress,” Miller v.

26

Jones, 114 Nev. 1291, 1300, 970 P.2d 571, 577 (1998), which can take the form of medical or

27

psychiatric treatment and prescribed medication. Burns v. Mayer, 175 F. Supp. 2d 1259, 1268 (D.

28

Nev. 2001) (discussing psychiatric care and prescription medication for depression and anxiety).
11

1

A plaintiff’s subjective testimony is insufficient to establish severe emotional distress. Miller, 114

2

Nev. at 1300, 970 P.2d at 577.

3

Mr. Garcia’s allegations are conclusory and fail to state a plausible IIED claim. The First

4

Amended Complaint alleges the defendants “acted with reckless disregard” causing him

5

“substantial physiological/psychological pain and emotional distress.” 1st Am. Compl. at 8. This

6

statement is conclusory and merely labels the defendants’ actions as reckless and an injury as

7

“emotional distress” to satisfy the IIED elements. Mr. Garcia’s conclusory assertions, with no

8

factual basis, do not state an IIED claim. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.

9

II.

LEAVE TO AMEND THE FIRST AMENDED COMPLAINT

10

If Mr. Garcia chooses to file a second amended complaint, he must do so by March 22,

11

2019. The second amended complaint must contain a short and plain statement of: (1) the grounds

12

for the court’s jurisdiction; (2) any claims he has showing he is entitled to relief; and (3) a demand

13

for the relief he seeks. Fed. R. Civ. P. 8(a). The amended complaint should set forth the claims

14

in short and plain terms, simply, concisely, and directly. See Swierkeiewicz v. Sorema N.A., 534

15

U.S. 506, 514 (2002); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988) (“If the

16

factual elements of a cause of action are scattered throughout the complaint but are not organized

17

into a ‘short and plain statement of the claim,’ dismissal for failure to satisfy Rule 8(a) is proper.”).

18

Mr. Garcia should summarize the information he believes to be relevant as part of the

19

supporting facts for each claim asserted in the second amended complaint. This means Garcia

20

should avoid legal jargon and conclusions. Instead, he should summarize the information he

21

believes to be relevant in his own words for each claim asserted in the amended complaint. Iqbal,

22

556 U.S. at 678 (Rule 8 demands “more than labels and conclusions” or a “formulaic recitation of

23

the elements of a cause of action”). Garcia is advised to support each of his claims with factual

24

allegations because all complaints “must contain sufficient allegations of underlying facts to give

25

fair notice and to enable the opposing party to defend itself effectively.” Starr, 652 F.3d at 1216.

26

When claims are alleged against multiple defendants, the complaint should clearly indicate

27

which claims apply to which defendant. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1995).

28

Mr. Garcia should specifically identify each defendant to the best of his ability, clarify what
12

1

constitutional right he believes each defendant violated and support each claim with factual

2

allegations about each defendant’s actions. Where multiple claims are alleged, the complaint

3

should identify which factual allegations give rise to each particular claim. Id. A plaintiff must

4

state “enough facts to raise a reasonable expectation that discovery will reveal evidence” of the

5

allegations charged. Cafasso, United States ex rel. v. General Dynamics C4 Systems, Inc., 637

6

F.3d 1047, 1055 (9th Cir. 2011) (quoting Twombly, 550 U.S. at 556).

7

Mr. Garcia is also informed that the court cannot refer to a prior pleading (i.e., the original

8

complaint or First Amended Complaint) in order to make the second amended complaint complete.

9

Local Rule 15-1 requires that an amended complaint be complete in itself without reference to any

10

prior pleading. See LR 15-1(a). This is because, as a general rule, an amended complaint

11

supersedes the prior complaint. Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th

12

Cir. 2015). Once a plaintiff files an amended complaint, the original pleading no longer serves

13

any function in the case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, in

14

a second amended complaint, as in an original or first amended complaint, each claim and the

15

involvement of each defendant must be sufficiently alleged.

16

Based on the foregoing,

17

IT IS ORDERED:

18

1. The Clerk of Court shall MAIL Mr. Garcia one blank form complaint for § 1983

19

civil rights actions along with the instructions for completing the form, one copy of

20

the First Amended Complaint (ECF No. 42), and one copy of this Screening Order.

21

2. Garcia’s claim for deliberate indifference to a serious medical need in Count I shall
proceed as to Officer Brandon Prisbrey and Dr. Susanne Roozendaal.6

22

3. Garcia’s claim for municipal liability in Count I shall proceed as to Las Vegas

23

Metropolitan Police Department and Sheriff Joe Lombardo.

24

4. Defendant Sunrise Medical Hospital and Naphcare, Inc. are DISMISSED without

25

prejudice and with leave to amend by March 22, 2019.

26
27
28

6

Mr. Garcia’s claim of deliberate indifference to a serious medical need also implicates NaphCare Dr.
John Doe. Garcia will be given an opportunity through discovery to identify this unknown defendant.
Garcia’s claim shall proceed against Dr. John Doe when he learns the doctor’s identity.

13

1

5. The claims for (i) gross negligence and/or negligence in Count II, (ii) intentional

2

infliction of emotional distress in Count III, and (iii) failure to train or supervise in

3

Count IV, are DISMISSED without prejudice and with leave to amend by

4

March 22, 2019, if Garcia believes sufficient facts exist to allege those claims.

5

a. The second amended complaint must be a complete document in and of itself

6

and will supersede the original complaint in its entirety. Any allegations,

7

parties, or requests for relief from prior papers that are not carried forward in

8

the amended complaint will no longer be before the court.

9

b. Garcia shall clearly title the second amended complaint as such by writing

10

“SECOND AMENDED” immediately above “Civil Rights Complaint Pursuant

11

to 42 U.S.C. § 1983” on the first page and 2:17-cv-02504-APG-PAL in the

12

space for “Case No.”.

13

6. If Mr. Garcia chooses not to file a second amended complaint by March 22, 2019:

14

a. The Clerk of Court will be instructed to issue summons for Defendant Susanne

15

Roozendaal and Garcia will be directed to serve her with summons and the First

16

Amended Complaint (ECF No. 42).

17

b. Defendants Brandon Prisbrey, Las Vegas Metropolitan Police Department, and

18

Sheriff Joe Lombardo will be ordered to file an answer or responsive pleading.

19

Dated this 20th day of February, 2019.

20
21

PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
14