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Cabrera v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

October 1, 2014

CHARLES M. CABRERA, Plaintiff,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, OFFICER JESSIE NEVILLE, and NAPHCARE, INC., Defendants.

ORDER

RICHARD F. BOULWARE, II, District Judge.

Defendant Jessie Neville's and Defendant Las Vegas Metropolitan Police Department's Motions to Dismiss (Dkt. Nos. 24 & 37)

I. INTRODUCTION

Before the Court are two motions to dismiss, one filed by Defendant Jessie Neville (Dkt. No. 24) and the other filed by Defendant Las Vegas Metropolitan Police Department ("LVMPD") (Dkt. No. 37). Upon consideration of the motions and supplemental pleadings on file, LVMPD's motion to dismiss is granted. Neville's motion to dismiss is granted in part and denied in part.

II. BACKGROUND

Plaintiff Charles Cabrera brought his amended civil rights Complaint pursuant to 42 U.S.C. ยง 1983 against Defendants Neville, LVMPD, NaphCare, Inc. ("NaphCare"), the Citizen Review Board, and Andrea Beckman alleging the violation of his Eighth Amendment and Fourteenth Amendment rights. In his Complaint, Cabrera alleges that on September 5, 2011, while in custody at Clark County Detention Center (CCDC), he sustained injuries as the result of excessive force used by Neville, a correctional officer at CCDC. Cabrera claims that Neville was demanding to know who had been singing or humming while a sergeant was present and that Cabrera asked why he and the other inmates were being treated like children. Cabrera alleges that Neville then grabbed Cabrera from behind, slammed him against a concrete wall or ledge, and placed his arm across Cabrera's neck and pushed into Cabrera with his body weight, causing injuries to Cabrera's lower back, shoulders and left hip. The Amended Complaint states that Cabrera was subsequently denied medical care for his injuries from September 5, 2011 until September 20, 2011 and that he continues to suffer from his injuries.

Cabrera alleges three separate counts in his Amended Complaint. Count One alleges a violation of his Fourteenth Amendment right to due process based on excessive force, and is asserted against Neville, LVMPD, the Citizen Review Board, and Beckman. Count Two alleges a violation of his Eighth Amendment right against cruel and unusual punishment based on the use of excessive force by Neville and deliberate indifference to Cabrera's medical needs by LVMPD and NaphCare. Count Three alleges another Eighth Amendment violation against LVMPD and NaphCare for the refusal to provide adequate medical treatment.

On October 30, 2013, the Magistrate Court entered an Order and Report and Recommendation (Dkt. No. 19) which recommended that LVMPD, the Citizen Review Board, and Andrea Beckman be dismissed with prejudice on the grounds that Cabrera failed to state a claim against them upon which relief can be granted and amendment would be futile. The Court accepted and approved the Report and Recommendation in its entirety on December 9, 2013 (Dkt. No. 23).

Neville filed a motion to dismiss on December 10, 2013 (Dkt. No. 24), arguing that he should be dismissed from Count Two because Cabrera's excessive force claim is properly analyzed under the Fourteenth Amendment, not the Eighth. Neville also argues that he should be dismissed from Count Three because Cabrera did not allege that Neville had any involvement with his medical treatment or requests for treatment. In response, Cabrera argues that Neville should not be dismissed from Count Two because Cabrera was in fact convicted at the time of the alleged use of force, thus making the Eighth Amendment applicable to his claim. Cabrera did not respond to Neville's argument that he should be dismissed from Count Three. In reply, Neville claims that in light of Cabrera's statement that he was convicted as of the date the claim arose, Neville should be dismissed from Count One because the Fourteenth Amendment does not apply to excessive force claims brought by convicted prisoners.

On March 3, 2014, LVMPD was served with a summons and a copy of Cabrera's Amended Complaint (Dkt. No. 36). LVMPD filed a motion to dismiss (Dkt. No. 37), arguing that it had already been dismissed from the case with prejudice pursuant to this Court's Order (Dkt. No. 23) and that Cabrera's method of service was improper.

III. LEGAL STANDARD

An initial pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, "[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party." Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted). In addition, documents filed by a plaintiff who is proceeding without counsel (as is the case here) must be liberally construed, and a pro se complaint must be "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal citations and quotation marks omitted); see also Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014).

To survive a motion to dismiss, a complaint need not contain "detailed factual allegations, " but it must do more than assert "labels and conclusions" or "a formulaic recitation of the elements of a cause of action...." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " meaning that the court can reasonably infer "that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (internal quotation and citation omitted). The Ninth Circuit, in elaborating on the pleading standard described in Twombly and Iqbal, has held that for a complaint to survive dismissal, the plaintiff must allege ...


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