ROBERT C. JONES, Senior District Judge.
Before the Court is Plaintiff's Motion for Enlargement of Time for Dispositive Motions (ECF No. 65); and Motion for Court to Provide Copies of Filed Documents (ECF No. 66). Defendants' filed notices of Non-Opposition (ECF Nos. 73 and 74). Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion To Enlarge Time To Complete Discovery (ECF No. 65) is GRANTED.
IT IS FURTHER ORDERED that dispositive motions shall be filed on or before Friday, September 28, 2018. No further extensions shall be granted.
IT IS FURTHER ORDERED that Plaintiff's Motion for Court to Provide Copies of Filed Documents (ECF No. 66) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff copies of the following filed documents:
IT IS SO ORDERED.
Defendants Cynthia Sablica, James "Greg" Cox, and Dwight Neven, by and through counsel, Adam Paul Laxalt, Attorney General of the State of Nevada, and Benjamin R. Johnson, Deputy Attorney General, hereby answer Plaintiff Michael Rhymes' Second Amended Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 ("Complaint") (ECF No. 26) in the above entitled action as follows.
1. Defendants admit Plaintiff Michael Rhymes ("Rhymes") is presently incarcerated at Northern Nevada Correctional Center (NNCC) located in Carson City, Nevada. Defendants deny any and all remaining allegations in this paragraph.
2. Named Defendant Dr. Romeo Aranas has been dismissed from this litigation pursuant to the Court's Screening Order (ECF No. 6) and therefore no response is required.
3. Named Defendant James "Greg" Cox was employed by the Nevada Department of Corrections as the Director. Defendants deny any and all remaining allegations in this paragraph.
4. Named Defendant Dwight Neven is employed by the Nevada Department of Corrections as the Warden at Florence McClure Women's Correctional Center. Defendants deny any and all remaining allegations in this paragraph.
5. Defendant admits Cynthia Sablica (named as Nurse Jane Doe) was employed by the Nevada Department of Corrections ("NDOC") as the Director of Nursing Services at High Desert State Prison ("HDSP"). Defendant denies any and all remaining allegations in this paragraph.
6. No response is required as John/Jane Does 1-5 are not current parties to this litigation.
7. Defendant admits that this court has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3); 42 U.S.C. § 1983. Defendant denies that jurisdiction is proper on any other basis.
1. Defendants admit Rhymes was incarcerated at HDSP. Defendants deny any and all remaining allegations in the Nature of the Case on page 3 of the Complaint.
Defendants admit Rhymes has rights under the Eighth Amendment of the United States Constitution. Defendants deny those rights, or any right owed to Rhymes were violated at any time or in any manner. Defendants deny any and all other allegations set forth in this paragraph.
1. Defendants are without sufficient knowledge or belief to admit or deny the matters asserted in this paragraph and therefore deny any and all allegations.
2. Defendants are without sufficient knowledge or belief to admit or deny the matters asserted in this paragraph and therefore deny any and all allegations.
3. Defendants admit Rhymes was given medical care. Defendants deny any and all remaining allegations in this paragraph.
4. Defendants deny any and all allegations in this paragraph.
5. Defendants admit Rhymes submitted medical request forms. Defendants deny any and all remaining allegations in this paragraph.
6. Defendants deny any and all allegations in this paragraph.
7. Defendants deny any and all allegations in this paragraph.
8. Defendants deny any and all allegations in this paragraph.
9. Defendants admit Rhymes filed a grievance. Defendants deny any and all remaining allegations in this paragraph.
10. Defendants admit Rhymes was given medical treatment. Defendants deny any and all remaining allegations in this paragraph.
11. Defendants deny any and all allegations in this paragraph.
12. Defendants deny any and all allegations in this paragraph.
13. Defendants deny any and all allegations in this paragraph.
14. Defendants deny any and all allegations in this paragraph.
15. Defendants deny any and all allegations in this paragraph.
16. Defendants deny any and all allegations in this paragraph.
17. Defendants deny any and all allegations in this paragraph.
18. Defendants deny any and all allegations in this paragraph.
19. Defendants deny any and all allegations in this paragraph.
20. Defendants deny any and all allegations in this paragraph.
21. Defendants deny any and all allegations in this paragraph.
22. Defendants deny any and all allegations in this paragraph.
23. Defendants deny any and all allegations in this paragraph.
24. Defendants deny any and all allegations in this paragraph.
Defendants admit Rhymes has rights under the Fourteenth Amendment of the United States Constitution. Defendants deny those rights, or any right owed to Rhymes were violated at any time or in any manner. Defendants deny any and all other allegations set forth in this paragraph.
1. Defendants deny any and all allegations in this paragraph.
1. Defendants are without knowledge to admit or deny, and denies on that basis.
2. Defendants are without knowledge to admit or deny, and denies on that basis.
3. Defendants are without knowledge to admit or deny, and denies on that basis.
Defendants deny Rhymes is entitled to any of the relief sought at page 12 of the Complaint.
Defendants also assert the following Affirmative Defenses:
The Complaint fails to state a claim upon which relief can be granted.
Defendants are not personally involved in the cause in fact and/or the proximate cause of the alleged constitutional deprivations.
This action is time-barred by applicable statutes of limitations.
Defendants, at all relevant times, acted in good faith toward Rhymes, therefore, Defendants are entitled to qualified good faith immunity from damages.
Defendants are entitled to qualified and absolute immunity.
At all relevant times herein, Defendants acted in accordance with applicable law and prison procedures that are constitutionally required.
Rhymes failed to state a cognizable constitutional claim under 42 U.S.C. § 1983 and the Nevada Constitution, Article 6, subsection 6, and NRS 41.031.
Rhymes failed to mitigate damages, if any, and therefore, is barred from seeking any damages hereunder.
Rhymes was himself negligent in his conduct and such negligence is the sole, primary and superseding cause of any damages sustained by him, if any.
Rhymes' punitive damage claims are barred by law.
Defendants are immune from liability because the acts complained of were discretionary in nature or were performed while carrying out a statute or regulation.
At all-time relevant, Defendants held a good faith belief that they were acting reasonably and that their actions were privileged and legally justified.
Rhymes failed to exhaust administrative remedies as required by the Prison Litigation Reform Act.
Rhymes' conduct constitutes a waiver of any alleged wrongful conduct undertaken by the answering Defendants.
Rhymes' conduct ratified any alleged wrongful conduct by the answering Defendants.
Defendants are immune from liability as a matter of law.
Defendants reserve the right to amend their reply to allege additional affirmative defenses if subsequent discovery so warrants.
The negligence of Rhymes caused or contributed to any injuries or damages which Rhymes may have sustained, and the negligence of these Defendants, if any, requires that the damages of Rhymes be denied or diminished in proportion to the amount of negligence attributable to Rhymes.
Defendants cannot be sued for monetary damages while acting in their official capacity in a civil rights action.
Rhymes is estopped from pursuing any claim against Defendants in accordance with equitable principles of jurisprudence.
The doctrines of res judicata and/or collateral estoppel bar Rhymes from asserting the matters set forth in his Complaint and also acts as a bar to any relief sought by Rhymes.
WHEREFORE, Defendants pray for relief as follows:
1. That Rhymes take nothing by virtue of his Complaint;
2. For attorney fees and costs of suit herein.
3. A jury trial is demanded.
This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is defendants' partial motion to dismiss (ECF No. 32). Plaintiff opposed (ECF No. 35), and defendants replied (ECF No. 37). For the reasons stated below, the court recommends that defendants' motion to dismiss (ECF No. 32) be granted.
Michael Rhymes ("plaintiff') is an inmate in the custody of the Nevada Department of Corrections ("NDOC"), and currently housed at Northern Nevada Correctional Center ("NNCC") in Carson City, Nevada. Pursuant to 42 U.S.C. § 1983, plaintiff brings a civil rights claim against various NDOC and NNCC officials.
On August 3, 2016, the District Court screened plaintiff's first amended complaint and determined that he could proceed with his Eighth Amendment deliberate indifference claim against defendant Cynthia Sablinca. (ECF No. 6 at 10.) Plaintiff's claim against defendants Romeo Aranas and Warden Nash were dismissed with prejudice, as the Court found that plaintiff failed to allege actual knowledge of the alleged unconstitutional conduct by those defendants. (See id.)
On March 31, 2017, plaintiff filed a motion to amend his complaint. (ECF No. 22.) Defendants did not oppose the motion, and the court granted plaintiff leave to file a second amended complaint ("SAC"). (ECF No. 25.) The SAC names as defendants, Romeo Aranas, Greg Cox, D.W. Neven, Cynthia Sablinca, and John/Jane Does 1-5, and brings an Eighth Amendment deliberate indifference claim relating to a denial or delay in providing plaintiff medication. (ECF No. 26.) On June 13, 2017, defendants Aranas and Cox filed a partial motion to dismiss asserting that plaintiff failed to allege personal participation by the defendants and that defendants are entitled to qualified immunity. (ECF No. 32.) This report and recommendation follows.
Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6). The ruling is a question of law. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). The court is to grant dismissal when the complaint fails to "state a claim for relief that is plausible on its face[,]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), or fails to articulate a cognizable legal theory, Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). When analyzing a motion under Rule 12(b)(6), courts accept as true all well-pled factual allegations, set aside legal conclusions, and verify that the complaint states a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). While detailed factual allegations are not necessary, the complaint must offer more than "a formulaic recitation of the elements of a cause of action," Twombly, 550 U.S. at 555, and include sufficient facts "to give fair notice and to enable the opposing party to defend itself effectively," Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In conducting the dismissal analysis, the complaint is construed in a light most favorable to the plaintiff. Chubb Custom Ins. Co. v. Space Sys./Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). Moreover, the court takes particular care when reviewing the pleadings of a pro se party, for a more forgiving standard applies to litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).
42 U.S.C. § 1983 aims "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (quoting McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000)). The statute "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights[,]" Conn v. Gabbert, 526 U.S. 286, 290 (1999), and therefore "serves as the procedural device for enforcing substantive provisions of the Constitution and federal statutes," Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Claims under § 1983 require a plaintiff to allege (1) the violation of a federally-protected right by (2) a person or official acting under the color of state law. Warner, 451 F.3d at 1067. Further, to prevail on a § 1983 claim, the plaintiff must establish each of the elements required to prove an infringement of the underlying constitutional or statutory right.
In his SAC, plaintiff alleges that defendants Aranas and Cox, failed to adequately fund the medical departments of NDOC facilities, thereby failing to ensure that plaintiff received adequate medical care. (See ECF No. 26 at 6.) Defendants contend that plaintiff's claim against defendants Aranas and Cox must be dismissed because plaintiff fails to allege personal participation. (ECF No. 32 at 3-4.) The court agrees; plaintiff's assertions are insufficient to state a claim.
"Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Iqbal, 556 U.S. at 676. However, an official acting in a supervisory capacity may be liable if he or she was personally involved in a constitutional deprivation, or there is a sufficient causal connection between his or her wrongful conduct and the deprivation. Henry A. v. Willden, 678 F.3d 991, 1004-05 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011)). Such wrongful conduct may include "`action or inaction in the training, supervision, or control of his [or her] subordinates. . . .'" Id. (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1083 (9th Cir. 1998)).
To survive a 12(b)(6) motion to dismiss, a plaintiff must provide more than "a formulaic recitation of the elements of a cause of action. . . . Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 553 (internal citations and quotations omitted).
Here, it is clear that plaintiff names defendants Aranas and Cox merely because they hold supervisory positions. Plaintiff's formulaic assertions fail to include specific facts to show that either of the defendants knew of plaintiff's serious medical need and disregarded it, that NDOC medical departments were suffering from a lack of funding, or that defendants approve the medical department budget. The SAC merely states that Aranas and Cox breached their duties by failing to provide adequate funding to the medical department. Plaintiffs conclusory assertions fail under Rule 12(b)(6).
Accordingly, the court finds that plaintiff fails to allege personal participation by defendants Aranas and Cox, and therefore recommends that defendants' partial motion to dismiss be granted.
Because this court finds that plaintiff failed to allege personal participation, it need not address defendants' qualified immunity defense.
For good cause appearing and for the reasons stated above, the court recommends that defendants' partial motion to dismiss (ECF No. 32) be granted.
The parties are advised:
1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of Practice, the parties may file specific written objections to this Report and Recommendation within fourteen days of receipt. These objections should be entitled "Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points and authorities for consideration by the District Court.
2. This Report and Recommendation is not an appealable order and any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment.
The Court has considered the Report and Recommendation of United States Magistrate (ECF No. 41) entered on August 30, 2017, in which the Magistrate Judge recommends the Court grant Defendants Aranas and Cox Motion to Dismiss (ECF No. 32). The Court has considered the pleadings and memoranda of the parties and other relevant matters of record and has made a review and determination in accordance with the requirements of 28 U.S.C. § 636 and applicable case law, and good cause appearing, the court hereby
ADOPTS AND ACCEPTS the Report and Recommendation of the United States Magistrate Judge (ECF No. 41).
IT IS HEREBY ORDERED that Defendants Aranas and Cox Motion to Dismiss (ECF No. 32) is GRANTED and Defendants Aranas and Cox are DISMISSED from this action.
IT IS SO ORDERED.
