Melnek v. Las Vegas Metropolitan Police Department et al

Filing 79

ORDER Granting 77 Stipulation for Dismissal. IT IS SO ORDERED: MELNEK'S 42 U.S.C. §1983 claim against DPBH is DISMISSED, with prejudice. The 42 U.S.C. §1983 claim against Phinney and Malay in their official capacities is DISMISSED, with prejudice. Signed by Judge Gloria M. Navarro on 3/11/2025. (Copies have been distributed pursuant to the NEF - RJDG)

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AARON D. FORD
Attorney General
COURTNEY E. LEVERTY
Deputy Attorney General
Nevada Bar No. 8544
State of Nevada
Office of the Attorney General
5420 Kietzke Lane, Suite 202
Reno, Nevada 89511
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendants
Department of Health and Human Services
Division of Public and Behavioral Health,
Cody Phinney and Jo Malay

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TROY MELNEK,

Case No.: 2:23-cv-01303-GMN-MDC
Plaintiff,

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vs.

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, JOSEPH LOMBARDO,
DIVISION OF PUBLIC AND
BEHAVIORAL HEALTH, DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
CODY PHINNEY, JO MALAY, and DOES I
– V, and ROE CORPORATIONS I – V,
inclusive,

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STIPULATION AND ORDER OF
DISMISSAL OF THE DIVISION OF
PUBLIC AND BEHAVIORAL HEALTH
(DPBH), AND CODY PHINNEY AND
JO MALAY, IN THEIR OFFICIAL
CAPACITIES, WITH PREJUDICE

Defendants.

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THE FOLLOWING IS HEREBY STIPULATED by and between Defendant

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DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF PUBLIC AND

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BEHAVIORAL HEALTH (“DPBH”), a political subdivision of the State of Nevada, CODY

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PHINNEY (“PHINNEY”), in her official capacity as Administrator of DPBH, and JO

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MALAY (“MALAY”) in her official capacity as Deputy Administrator of DPBH (collectively

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referred to as “STATE DEFENDANTS”) and Plaintiff, TROY MELNEK (“MELNEK”), by

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and through their respective attorneys of record.

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1. In MELNEK’S Second Amended Complaint, filed on February 5, 2025, against

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State Defendants, MELNEK brought four causes of action against STATE

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DEFENDANTS: (1) a Due Process violation pursuant to the Fourteenth

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Amendment and the Nevada Constitution for failure to make a bed available, (2)

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a Cruel And Unusual Punishment violation, (3) a Due Process violation pursuant

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to the Fourteenth Amendment and the Nevada Constitution for failure to convey

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MELNEK for treatment; and (4) an Equal Protection violation pursuant to the

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Fourteenth Amendment and the Nevada Constitution.

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2. In the Court’s order of May 10, 2024, the Court found MELNEK’S Complaint

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against DPBH, a Nevada State agency, immune from suit for money damages

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pursuant to the Eleventh Amendment; and as such, when MELNEK realleged

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DPBH again in its Amended Complaint on January 15, 2025, the Court dismissed

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MELNEK’S 42 U.S.C. §1983 claim against DPBH, with prejudice. ECF 69 5:17-

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21. For those reasons, the parties agree to dismiss the constitutional violations

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brought in MELNEK’S Second Amended Complaint against DPBH with

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prejudice.

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3. On January 15, 2025, the Court dismissed PHINNEY and MALAY in their

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official capacities, with prejudice, finding MELNEK’S Amended Complaint,

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“lump[ed] together… multiple defendants in one broad allegation failing to

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satisfy the notice requirement of Rule 8(a)(2). “ECF 69 6:10-17; (citing Gen-Probe,

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Inc. v. Amoco Corp., Inc., 926 F. Supp. 948, 961 (S.D. Cal. 1996) (also citing

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Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988). The Court found

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MELNEK’S Amended Complaint contained only one allegation specific to

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PHINNEY and MALAY – an allegation stating their job titles at DPBH – and did

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not specifically identify “what action each Defendant took that caused Plaintiff’s

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harm, without resorting to generalized allegations against Defendants as a

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whole.” ECF 69, 6: 17-23 (citing In re iPhone Application Litig., No. 11-MD-02250-

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LHK, 2011 WL 4403963, at *3 (N.D. Cal. Sept. 20, 2011).

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4. On January 15, 2025, the Court also found MELNEK’S Amended Complaint

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lumped all STATE DEFENDANTS in his causes of action for cruel and unusual

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punishment and equal protection violations. Therefore, the parties agree to

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dismiss the constitutional violations brought in MELNEK’S Second Amended

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Complaint against PHINNEY and MALAY, in their official capacities, with

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prejudice.

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IT IS HEREBY STIPULATED by and between the parties, hereto, by their
respective attorneys of records as follows:

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1. MELNEK agrees, based on the Court’s prior orders, that all claims for money

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recovery against DPBH as set forth in the Second Amended Complaint be

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dismissed.

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2. MELNEK agrees, based on the Court’s prior orders, that all claims for money

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recovery against PHINNEY and MALAY in their official capacities, as set forth

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in the Second Amended Complaint, be dismissed.

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3. MELNEK agrees to file a motion to amend the caption to reflect the proper

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STATE DEFENDANTS remaining in the case.

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4. MELNEK’S state law claims breach of contract, negligent infliction of emotional

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distress, and intentional infliction of emotional distress are not addressed in this

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Stipulation.

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…

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…

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…

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Page 3 of 5

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5. MELNEK’s claims against PHINNEY and MALAY in their individual capacities
are not addressed in this Stipulation.
DATED this 11th day of March 2025.

DATED this 11th day of March 2025.

AARON D. FORD
Attorney General

LAW OFFICE OF DAVID SAMPSON

By: /s/ Courtney E. Leverty
COURTNEY E. LEVERTY

By: /s/ David F. Sampson
DAVID F. SAMPSON, ESQ.
ORDER

IT IS SO ORDERED:

MELNEK’S 42 U.S.C. §1983 claim against DPBH is

DISMISSED, with prejudice. The 42 U.S.C. §1983 claim against Phinney and Malay in their

official capacities is DISMISSED, with prejudice.
11 day of March 2025.
DATED this _____
_____________________________________
GLORIA M. NAVARRO, District Judge
UNITED STATES DISTRICT COURT

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CERTIFICATE OF SERVICE

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I certify that I am an employee of the State of Nevada, Office of the Attorney General,

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and that on the 11th day of March 2025, I filed the foregoing STIPULATION AND

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ORDER OF DISMISSAL OF THE DIVISION OF PUBLIC AND BEHAVIORAL

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HEALTH (DPBH), AND CODY PHINNEY AND JO MALAY, IN THEIR OFFICIAL

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CAPACITIES, WITH PREJUDICE and served via this Court’s Electronic Filing System

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to the following interested parties:

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ROBERT W. FREEMAN
[e-mail]
E. MATTHEW FREEMAN
[e-mail]
LEWIS BRISBOIS BISGAARD & SMITH LLP
6385 S. Rainbow Boulevard, Suite 600
Las Vegas, Nevada 89118
DAVID F. SAMPSON
LAW OFFICE OF DAVID SAMPSON
630 South Third Street
Las Vegas, Nevada 89101
[e-mail]

/s/ Gina Hinds
AG Legal Secretary

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