United States District Court, D. Nevada
NATALIE NELSON, individually and as natural mother and legal guardian of minor child ALEXANDER L.; RICHARD E. NELSON, maternal grandfather of ALEXANDER L.; CATHERINE R. NELSON, maternal grandmother of ALEXANDER L., Plaintiffs,
MICHAEL WILLDEN, Director of the Nevada Department of Health and Human Services; AMBER HOWELL, Administrator of the Nevada Division of Child and Family Services; DONALD BURNETTE, Clark County Manager; CLARK COUNTY; LISA RUIZ-LEE, Director of Clark County Department of Family Services; DOES I-X, inclusive; DOES XI-XX, inclusive, Defendants.
GLORIA M. NAVARRO, Chief District Judge.
Pending before the Court is the Motion to Dismiss (ECF No. 54) filed by Defendants Michael Willden and Amber Howell ("State Defendants"). Plaintiffs Natalie Nelson, Richard E. Nelson, and Catherine R. Nelson filed a Response (ECF No. 58) and the State Defendants filed a reply (ECF No. 60).
This case arises from the tragic events that occurred on November 10, 2012 and resulted in the hospitalization of Plaintiff Alexander L. Specifically, Plaintiffs allege that Alexander was placed into foster care by Clark County Department of Family Services ("DFS") after his mother, Plaintiff Natalie Nelson, was taken into custody for an outstanding warrant for an unpaid taxi cab fare. (Am. Compl. ¶ 36, ECF No. 48). Alexander was ultimately placed in the care of a DFS approved foster mother who, on November 10, 2012, left the child in the care of Osbaldo Sanchez for twelve hours or longer. ( Id. ¶ 45). That same evening, the foster mother "took Alexander to Mountain View Hospital in an unresponsive state." ( Id. ¶ 44). Later that evening, Alexander was transported to Sunrise Children's Hospital where "he underwent emergency surgery to remove a portion of his skull to allow for his brain to expand due to excessive swelling." ( Id. ¶ 47). On November 11, 2012, DFS was notified of the incident. ( Id. ¶ 45). On November 12, 2012, medical staff at Sunrise Hospital determined that "Alexander's injuries were consistent with Shaken Baby Syndrome Inflicted Childhood Neurotrauma." ( Id. ¶ 50). Several weeks later, Alexander was transferred to a permanent care facility and "[h]is long term prognosis is uncertain." ( Id. ¶¶ 53-54).
After this incident, Plaintiffs filed the instant action alleging twelve causes of action: (1) Violation of Substantive Due Process: Duty to Protect; (2) Violation of Substantive Due Process: State Created Danger; (3) Violation of Plaintiff's Civil Rights - Familial Relationships; (4) Violation of Plaintiff's Civil Rights - Municipal Liability; (5) Violation of Adoption and Safe Families Act; (6) Violation of State Civil Rights; (7) Negligence; (8) Negligent Supervision and Training; (9) Negligent Infliction of Emotional Distress; (10) Vicarious Liability; (11) Civil Conspiracy; and (12) Intentional Infliction of Emotional Distress. ( Id. ¶¶ 55-140).
In response, Defendant Amber Howell, Administrator of the Nevada Division of Child and Family Services, and Defendant Michael Willden, Director of the Nevada Department of Health and Human Services, (the "State Defendants") filed a Motion to Dismiss. (ECF No. 13). In their Motion, the State Defendants first asserted that all Plaintiffs' causes of action seeking money damages against the State Defendants in their official capacities must fail because they are entitled to sovereign immunity. ( Id. 3:21-4:19). In addition, the State Defendants' sought dismissal of Plaintiffs' first through fifth causes of action because Plaintiffs failed to properly allege individual capacity claims. ( Id. 4:20-22). The Court granted the Motion, dismissing with prejudice Plaintiffs' claims against the State Defendants in their official capacities and dismissing without prejudice Plaintiffs' claims against the State Defendants in their individual capacities. (Order Granting Mot. to Dismiss 7:8-12, ECF No. 46). The Court also granted Plaintiffs leave to file an amended complaint. ( Id. 7:3-6).
On February 26, 2014, Plaintiffs filed an Amended Complaint (ECF No. 48), to which the State Defendants filed the instant Motion to Dismiss (ECF No. 54). In their Motion, the State Defendants first assert that Plaintiffs' first through fifth causes of action fail to state a claim against the State Defendants because Plaintiffs' claims are still too broad to sufficiently allege the personal involvement or knowledge of the State Defendants, Plaintiffs' claims fail to allege essential elements of the claims, and the State Defendants are entitled to qualified immunity. (Defs.' Mot. to Dismiss 3:9-10:23). In addition, the State Defendants seek dismissal of Plaintiffs' sixth through twelfth causes of action for failing to state a claim against the State Defendants. ( Id. 10:24-12:25).
II. LEGAL STANDARD
When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555) (emphasis added).
If the court grants a motion to dismiss, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[, ] dilatory motive on the part of the movant... undue prejudice to the opposing party by virtue of... the amendment, [or] futility of the amendment...." Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
To successfully bring a 42 U.S.C. § 1983 claim, a plaintiff must allege (1) a violation of a constitutional right and (2) must show that the alleged violation was committed by "a person acting under color of state law." West v. Atkins, 487 U.S. 42, 49 (1988). Further, "[Section] 1983 is not itself a source of substantive rights, ' but merely provides a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
Plaintiffs' Amended Complaint enumerates twelve causes of action asserted against "All Defendants" or "Defendants." ( See Am. Compl. ¶¶ 66-134). State Defendants' Motion to Dismiss asserts that eleven of the twelve causes of action should be dismissed. (Mot. to Dismiss 3:9-12:25, ECF No. 54). State Defendants allege the first five causes of action arising under 42 U.S.C. § 1983 should be dismissed because Plaintiffs have "made little to no changes to their causes of actions" and "their causes of action in the Amended Complaint remain almost exactly the same as they were previously stated in their Complaint... that was dismissed." ( Id. 3:6-19). Further, State Defendants allege Plaintiffs' negligence claims fail due to discretionary immunity. ( Id. 10:24). Moreover, State Defendants seek to dismiss Plaintiffs' Sixth Cause of Action alleging due process rights violated per the Nevada Constitution, as the claim is analogous to the § 1983 causes of action ( Id. 12:1-4), and Plaintiffs' ...