United States District Court, D. Nevada
J. Dawson, United States District Judge
before the Court is Defendant Robert Draskovich's
Substantive Joinder (#51) to Defendants Michael O. Nyarko and
William L. Downey's Motion to Dismiss (#49). Plaintiff
filed a response in opposition (#80) to which Defendant
case arises out of Plaintiff's claims that Defendants
conspired to mislead the State's juvenile court and
deprive him of custody of his minor son X.X. Plaintiff has
named his former attorney, Robert Draskovich, as a defendant.
Plaintiff hired Draskovich in July of 2013 to represent him
in the juvenile court trial regarding X.X. However, Plaintiff
alleges that the day before trial Defendant coerced him to
enter into a plea settlement against his will. According to
Plaintiff, Defendant told him “that if he doesn't
go in for the settlement, he will never see his son ever
again.” Because of the overwhelming stress of the
situation Plaintiff claims that he agreed to enter into the
plea settlement, though his desire had always been to seek
justice at trial. Plaintiff entered a no contest plea to
educational neglect of his son in exchange for a dismissal of
other allegations of child abuse and neglect. In fact, no
further criminal or civil charges were brought against
Plaintiff. Plaintiff admits in his first amended complaint
that he did keep X.X. out of school for eleven days in an
attempt to protect the boy from the alleged abuse of
X.X.'s mother and grandfather.
alleges that Defendant mislead him into a fraudulent
settlement and thereby breached his fiduciary duty and
committed legal malpractice. Plaintiff further alleges that
all Defendants violated Plaintiff's constitutional
rights, conspired to deprive Plaintiff of his rights, and
failed to prevent the deprivation of those rights. Defendant
Draskovich filed the present motion to dismiss
Plaintiff's First Amended Complaint.
may dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” F.R.C.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands more than “labels and
conclusions or a formulaic recitation of the elements of a
cause of action.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citations omitted). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. Thus, “[to]survive a motion to dismiss, a
complaint must contain sufficient factual matter to
‘state a claim for relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (citation
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions or mere recitals of the elements
of a cause of action, supported only by conclusory
statements, are not entitled to the assumption of truth.
Id. at 678. Second, a district court must consider
whether the factual allegations in the complaint allege a
plausible claim for relief. Id. at 679. A claim is
facially plausible when the plaintiff's complaint alleges
facts that allow the court to draw a reasonable inference
that the defendant is liable for the alleged misconduct.
Id. at 678. Further, where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged-but it has not
show[n]-that the pleader is entitled to relief.”
Id. at 679 (internal quotation marks omitted). Thus,
when the claims in a complaint have not crossed the line from
conceivable to plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570. Moreover, “[a]ll
allegations of material fact in the complaint are taken as
true and construed in the light most favorable to the
non-moving party.” In re Stac Elecs. Sec.
Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation
First through Fourth Causes of Action, Plaintiff alleges that
all Defendants: (1) deprived him of his constitutional
rights, 42 U.S.C. § 1983; (2) conspired to prevent
justice, 42 U.S.C. § 1985(2); (3) conspired to deprive
him of his rights and privileges, 42 U.S.C. § 1985(3);
and, (4) failed to prevent the alleged wrongs that were
conspired to be done against him, 42 U.S.C. § 1985.
Additionally, Plaintiff names Draskovich in the Seventh
through Ninth Cause of Action for negligence per se, breach
of fiduciary duty, and legal malpractice.
Deprivation of Rights and Privileges Claims
Draskovich argues that Plaintiff's first four causes of
action fail to state a claim upon which relief can be
granted. Plaintiff's First Cause of Action arises under
42 U.S.C. § 1983. In order to bring a § 1983 claim,
a Plaintiff must allege two essential elements: (1) that a
constitutional or legal right was violated; and (2) that the
violation was “committed by a person acting under the
color of State law.” Long v. County of Los
Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Draskovich
argues that Plaintiff has failed to allege facts to support a
finding that Draskovich acted under color of state law.
Plaintiff contends that Draskovich worked as a co-conspirator
with the government and is therefore a state actor under the
joint action test. Dennis v. Sparks, 449 U.S. 24,
order for a person to act under the color of state law, it is
not necessary for that person to be an officer of the state.
Id. at 27. It is sufficient that a person be a
willful participant in joint action with the state.
Id. However, “[a] private party is liable
under this theory, only if its particular actions are
‘inextricably intertwined' with those of the
government. Brunette v. Humane society of Ventura
County, 294 F.3d 1205, 1211 (9th Cir. 2002) (quoting
Mathis v. Pac. Gas & Elec. Co., 75 F.3d 498, 503
(9th Cir. 1996)). Joint action requires a “substantial
degree of cooperative action” between the state and the
defendant. Collins v. Womancare, 878 F.2d 1145, 1154
(9th Cir. 1989).
has alleged that Draskovich conspired with the government to
deprive Plaintiff of his constitutional rights. This
conclusory allegation does not show a “substantial
degree of cooperative action.” Id. Without
further factual allegations, Plaintiff's claim is merely
a recitation of the elements for a § 1983 claim.
Iqbal, 556 U.S. ...