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Carrillo v. Gillespie

United States District Court, D. Nevada

March 28, 2014

Gilberto Carrillo, Plaintiff
Douglas Gillespie et al., Defendants


JENNIFER A. DORSEY, District Judge.

This removed prisoner-civil-rights action arises out of Plaintiff Gilberto Carrillo's temporary transportation to Clark County Detention Center ("CCDC") for a court hearing, where Carrillo was held with Surenos gang member Milo Hicks.[1] Carrillo, a Surenos dropout, feared Hicks would retaliate against him and asked the detention-facility officials not to place him in a cell with Hicks.[2] The men were placed together and a physical altercation occurred between them, followed by what Carrillo describes as "excessive force" by Las Vegas Metropolitan Police Department ("LVMPD") officers, who allegedly slammed Carrillo's head against a wall and jerked him around while he was in wrist, belly, and ankle chains.[3] Three counts remain after Judge James C. Mahan's screening order issued on May 14, 2013: a deliberate-indifference claim against prison-transportation officers Dwain Cotwright and Raul Diaz, an excessive-force-claim against LVMPD officer Kathryn Bussell, and supervisory-liability claims against Nevada Department of Corrections warden Dwight Neven and LVMPD sheriff Douglas Gillespie.[4]

The Court now considers nine motions brought by parties on both sides.[5] After reviewing the record and law, and good cause appearing, the Court grants CCDC's motion to dismiss; grants Cotwright, Diaz and Neven's motion to dismiss; and denies Bussell's motion to dismiss. Carrillo's motions for summary judgement are both denied. The Court denies Carrillo's first motion to abey, and grants in part and denies in part his second motion to abey. It also denies as moot Cotwright, Diaz, and Neven's motion to extend time. Finally, Carrillo's motion to supplement judicial notice is also denied.


A. Clark County Detention Center's Renewed Motion to Dismiss (Doc. 51)

Defendant CCDC brought a motion to dismiss on December 27, 2012, that was addressed in Judge Mahan's May 14, 2013, screening order.[6] That order dismissed all but three claims from Carrillo's amended complaint and denied CCDC's original motion to dismiss as moot.[7] Because the order did not specify that CCDC was dismissed with prejudice, CCDC renews its motion to dismiss "in an overabundance of caution."[8] The Court finds that, consistent with Judge Mahan's order and on the merits of CCDC's motion, CCDC is properly dismissed with prejudice.

1. Facially implausible claims must be dismissed.

District courts employ a two-step approach when evaluating the sufficiency of a complaint in the face of a motion to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption of truth.[9] Mere recitals of the elements of a cause of action, supported only by conclusory statements, are insufficient.[10] Second, the court must consider whether the well-pled factual allegations state a plausible claim for relief.[11] A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct.[12] A complaint that does not permit the court to infer more than the mere possibility of misconduct has "alleged-but not shown-that the pleader is entitled to relief" and must be dismissed.[13]

2. Carrillo's claims against the CCDC are implausible under Monell because CCDC is a building, not an entity subject to liability.

CCDC argues that it is not a proper defendant in this lawsuit because "under Nevada law, it is not a suable entity."[14] Monell v. Department of Social Services and its progeny establish that Section 1983 liability can attach to municipalities and to municipal officials who act pursuant to official policy[15] CCDC fits neither category: it is neither a political subdivision of Nevada nor a municipal employee. Instead, as CCDC argues in its motion to dismiss, "Clark County Detention Center" is "the name of a building owned by Clark County."[16] Carrillo agrees with CCDC by stating that he "does not wish to oppose this defendant's motion to dismiss."[17] He correctly admits that he "cannot state a colorable claim against CCDC" because "it is merely a name on a building."[18]

Because 1983 "liability is limited to actions for which the municipality is actually responsible, " a building cannot be properly sued for the actions of an actual government entity. Carrillo can and does sue municipal officials including LVMPD's Sheriff Gillespie, NDOC's Warden Neven, and employees of LVMPD and NDOC. He cannot state a plausible claim for relief against CCDC, however, because this building cannot be liable for the misconduct he alleges.[19] Consistent with Judge Mahan's order denying CCDC's initial motion to dismiss as moot, because CCDC is not a proper defendant, and in recognition of Carrillo's admissions, the Court grants CCDC's motion to dismiss (Doc. 51) and dismisses this defendant with prejudice.

B. Carrillo's Second Motion to Abey, Bussell's Motion to Dismiss, and Carrillo's Motion for Summary Judgment (Docs. 59, 84, 92)

Carrillo attempts to bring suit against an LVMPD officer he identifies as "Sgt. K. Bussell."[20] In his motion to abey, Carrillo writes that "it has come to my attention that, rather than being a male officer, Sgt. K. Bussell, it turns out, is a Ms. Sgt. Katherine Bussell." On this basis, Carrillo's motion to abey brings three requests to the Court: voluntary dismissal of Bussell as the wrong defendant, discovery regarding the correct defendant, and amendment to reflect the correct defendant. The Court considers his requests in turn, followed by Bussell's related motion to dismiss and Carrillo's related motion for summary judgment.

1. Carrillo's motion to abey and Bussell's motion to dismiss (Doc. 84, 92)

a. Voluntary dismissal

Federal Rule of Civil Procedure Rule 41 allows a plaintiff to "dismiss an action without a court order by filing... a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." If this is the plaintiff's first dismissal "based on or including the same claim, " then dismissal does not operate as an adjudication on the merits.[21] Voluntary dismissal "means that the party is filing the dismissal without being compelled by another party or the court."[22] Such dismissal is an "absolute right" that "leaves no role for the court to play."[23]

Carrillo asks the Court to"sever[] [Bussell] from the substantive action without any prejudice to it."[24] He reiterates this request in his response to Bussell's motion to dismiss, where he writes that it is "clear that Sgt. Katheryn Bussell should be dismissed without prejudice from that action."[25] The Court therefore construes Carrillo's motion as a request, in part, to dismiss his claims against Kathryn Bussell without prejudice. Defendant Bussell filed a motion to dismiss on September 6, 2013, which similarly asks the Court to dismiss the action against her without prejudice and to cancel issuance of service.[26] Her requests are based entirely on Carrillo's motion to abey, which was filed 16 days earlier on August 21, 2013.[27] At the time Carrillo brought his motion, Bussell had not filed either an answer or a motion for summary judgment, and she still has not filed either.[28] Rule 41 therefore permits voluntary dismissal. It does not, however, authorize the Court to ...

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