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Smith v. Lopez

United States District Court, District of Nevada

December 29, 2014

Bradley Smith, Plaintiff,
Nestor Lopez; Reginald Winbush; George J. Opfer; Steve Stern; and Gwen Shockley, Defendants.


Gloria M. Navarro, Chief United States District Judge

Pending before the Court is the Motion to Dismiss, (ECF No. 25), filed by Defendants Nestor Lopez, Reginald Winbush, George J. Opfer, Steve Stern, and Gwen Shockley. Pro se Plaintiff Bradley Smith filed a Response in opposition, (ECF No. 27), to which Defendants filed a Reply, (ECF No. 30).


The Amended Complaint centers upon allegations that one of Plaintiff’s former supervisors, two United States Department of Veterans Affairs (“VA”) police officers, the VA Inspector General, and a VA privacy officer conspired to falsify and unlawfully withhold evidence after a workplace altercation that occurred on August 22, 2012. (Am. Compl., ECF No. 20). The Court dismissed Plaintiff’s original Complaint on March 28, 2014, for failure to state a claim upon which relief could be granted, but gave Plaintiff leave to file an amended complaint to correct the deficiencies identified therein. (ECF No. 19). Plaintiff timely filed the Amended Complaint on April 18, 2014.

Plaintiff alleges that he was employed by the VA Southern Nevada Healthcare System (“VA SNHS”) from December 2006 until his resignation on April 29, 2013. (Am. Compl. at 10). On August 22, 2012, Plaintiff and his immediate supervisor were involved in a workplace altercation at the VA SNHS North Las Vegas Medical Center campus. (Id.). Though the altercation itself is not detailed in the Amended Complaint, Plaintiff alleges that after the dispute occurred, Defendant Steve Stern, Plaintiff’s second-level supervisor, ordered Plaintiff to remain seated in a chair until the end of the workday. (Id. at 6). Subsequently, several VA police officers, including Defendant Nestor Lopez, arrived on the scene and interviewed Plaintiff about the dispute. (Id. at 2). Plaintiff alleges that, following this interview, Defendant Lopez authored a police report in which he falsely stated that Plaintiff appeared to be under the influence of methamphetamines. (Id.).

When Plaintiff requested a copy of Defendant Lopez’s report after the incident, Defendant Gwen Shockley, a VA privacy officer, allegedly transmitted a version in which Defendant Lopez’s observations about Plaintiff’s possible methamphetamine use were redacted. (Id. at 8). Defendant Shockley refused to disclose an unredacted version of the report. (Id.).

Plaintiff alleges that he was subsequently able to obtain an unredacted version of the report through other means. (Id.). Upon seeing the allegedly false statements contained in the report, Plaintiff approached Defendant Reginald Winbush, Chief of the VA Police, and Defendant George J. Opfer, VA Inspector General, requesting that the report be changed and that an investigation be initiated into Defendant Lopez’s conduct. (Id. at 3-4). Defendants Winbush and Opfer declined to act on either of these requests. (Id.).

Based on these allegations, the Amended Complaint sets forth five claims of violations of Plaintiff’s constitutional rights: (1) “Procedural Due Process/Substantive Due Process, the Right to Know Opposing Evidence”; (2) “Equal Protection”; (3) “False Imprisonment/ Negligent Confinement”; (4) “Loss and Deprivation of Plaintiff’s Free Will”; and (5) “Free Speech/Free Association.” (Id. at 10-14). Plaintiff asserts his claims against Defendants in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).[1] As relief, Plaintiff seeks $2, 000, 000 in damages for the alleged constitutional violations, $1, 000, 000 in “speculative damages, ” treble damages, and a permanent injunction. (Am. Compl. at 20).

In the instant Motion, Defendants argue that Plaintiff’s claims should again be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. to Dism., ECF No. 25).


Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so requires, ” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).


A. Elements of a Bivens Claim

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