United States District Court, D. Nevada
C. LONES United States District Judge.
case arises out of the use of a shotgun to break up a fight
between two prisoners. Pending before the Court is the
Magistrate Judge's Report & Recommendation
(“R&R”) on Defendants' motion to dismiss
or for summary judgment. The Magistrate Judge recommends
dismissing the claims against Defendant Dustin Mumpower and
the individual capacity claims against Defendant Dwight
Neven. Plaintiff has not opposed dismissal in that regard.
The Magistrate Judge recommends denying the motion as to the
official capacity claims against Neven. Finally, the
Magistrate Judge recommends dismissing the State of Nevada
and the Nevada Department of Corrections (“NDOC”)
without prejudice under Rule 4(m).
Court agrees with the R&R except as otherwise stated. The
Court respectfully disagrees that the claims against Neven in
his official capacity should proceed. As the warden of High
Desert State Prison (“HDSP”), Neven is alleged to
be liable for implementing the NDOC policy permitting
excessive force. There is no general supervisory liability
under 42 U.S.C. § 1983. E.g., Chudacoff v.
Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1151 (9th
Cir. 2011) (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 692 (1978)). A supervisor can be
held liable under § 1983 if he directly sets into motion
the particular violation at issue or refuses to stop
particular actions of which he is or should be aware. See
Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir. 2011).
But there must be a specific policy implemented by a
supervisory defendant or a specific event instigated by him.
Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir.
2012). Plaintiff does not allege that Neven instigated the
event at issue, but only that he implemented a policy leading
to it. Where a supervisor is not directly involved in a
wrongful act, there must be “a sufficient causal
connection between the supervisor's wrongful conduct and
the constitutional violation.” Crowley v.
Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (quoting
Snow v. McDaniel, 681 F.3d 978, 989 (9th Cir.2012)
(quoting Hansen v. Black, 885 F.2d 642, 646 (9th
Cir. 1989))). Under that theory, “[s]upervisory
liability exists . . . if supervisory officials implement a
policy so deficient that the policy ‘itself is a
repudiation of constitutional rights' and is ‘the
moving force of a constitutional violation.'”
Id. (quoting Hansen, 885 F.2d at 646
(quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th
Cir. 1987))) (first alteration in original).
alleges that NDOC Administrative Regulation
(“AR”) 405 is unconstitutional. (See Am.
Compl. ¶¶ 45-46, ECF No. 64). But an examination of
AR 405 shows it not to be unconstitutional with respect to
excessive force. See AR 405.01, at 3,
%20Force%20Final%2011-15-16.pdf (“It is the policy of
the NDOC to authorize the use of physical force when and only
to the extent that it is reasonably believed to be necessary
as specified in these rules. Staff is authorized to use that
amount of force that is objectively reasonable to overcome a
threat thereby minimizing the risk of injury to the officer,
the threat and the public.”). Lethal force may only be
used “upon the reasonable belief that staff life or
safety, or the life or safety of another, is in imminent
jeopardy of death or substantial bodily harm given the
totality of the circumstances known to the officer at the
time . . . .” See AR 405.06, at 9. The
regulation is insulated from a facial constitutional
challenge under the Eighth Amendment by its own requirements
of objective reasonableness. To the extent any individual
Defendants acted unconstitutionally with respect to their use
of force, they did not act in accordance with AR
405, and Neven therefore cannot be held liable for those
Defendants' actions as a supervisor based on his
implementation of AR 405. Plaintiff also appears to allege
that despite AR 405, Neven instituted a de facto policy that
permitted force beyond what AR 405 permitted, which if true
might support a claim against him. See Amnesty Am. v.
Town of W. Hartford, 361 F.3d 113, 127 n.7 (2nd Cir.
2004) (Sotomayor, J.).
Plaintiff has agreed to dismissal of the individual capacity
claims against Neven, and Plaintiff can obtain only
injunctive relief against Neven in his official capacity.
Plaintiff has not alleged facts supporting standing to seek
such relief. An extended quotation from the controlling
Supreme Court case with analogous facts is helpful:
Lyons has failed to demonstrate a case or controversy with
the City that would justify the equitable relief sought.
Lyons' standing to seek the injunction requested depended
on whether he was likely to suffer future injury from the use
of the chokeholds by police officers. Count V of the
complaint alleged the traffic stop and choking incident five
months before. That Lyons may have been illegally choked by
the police on October 6, 1976, while presumably affording
Lyons standing to claim damages against the individual
officers and perhaps against the City, does nothing to
establish a real and immediate threat that he would again be
stopped for a traffic violation, or for any other offense, by
an officer or officers who would illegally choke him into
unconsciousness without any provocation or resistance on his
part. The additional allegation in the complaint that the
police in Los Angeles routinely apply chokeholds in
situations where they are not threatened by the use of deadly
force falls far short of the allegations that would be
necessary to establish a case or controversy between these
In order to establish an actual controversy in this case,
Lyons would have had not only to allege that he would have
another encounter with the police but also to make the
incredible assertion either, (1) that all police officers in
Los Angeles always choke any citizen with whom they happen to
have an encounter, whether for the purpose of arrest, issuing
a citation or for questioning or, (2) that the City ordered
or authorized police officers to act in such manner. Although
Count V alleged that the City authorized the use of the
control holds in situations where deadly force was not
threatened, it did not indicate why Lyons might be
realistically threatened by police officers who acted within
the strictures of the City's policy. If, for example,
chokeholds were authorized to be used only to counter
resistance to an arrest by a suspect, or to thwart an effort
to escape, any future threat to Lyons from the City's
policy or from the conduct of police officers would be no
more real than the possibility that he would again have an
encounter with the police and that either he would illegally
resist arrest or detention or the officers would disobey
their instructions and again render him unconscious without
City of L.A. v. Lyons, 461 U.S. 95, 105 (1983)
(footnote omitted) (reversing the Court of Appeals'
affirmation of a preliminary injunction). Likewise here,
Plaintiff has not alleged that there is a real and immediate
threat that he will again be subjected to use of a shotgun
without any provocation on his part. All allegations are made
in the past tense. (See Am Compl. ¶¶ 41-
58). Nor has he alleged that NDOC officers use shotguns in
all encounters with prisoners or that any policy implemented
by Neven commands or permits them to do so. Accordingly, the
claim for injunctive relief against Neven will be dismissed
for lack of standing.
Court will give leave to amend, however. The Eleventh
Amendment prohibits suits against states in federal court
without their consent. Defendants have waived Eleventh
Amendment protection by removing the case to federal court,
see Embury v. King, 361 F.3d 562, 566 (9th Cir.
2004), despite the State's general non-waiver statute,
see Nev. Rev. Stat. § 41.031(3). The Civil
Rights Act of 1871 only creates subject matter jurisdiction
for suits against “person[s], ” 42 U.S.C. §
1983, and neither a state nor its employees acting in their
official capacities are “person[s]” under §
1983. Will v. Mich. Dep't of State Police, 491
U.S. 58, 71 (1989). But contrary to Defendants' argument,
Will does not prevent official-capacity actions for
injunctive relief. See Id. at 71 n.10 (“Of
course a state official in his or her official capacity, when
sued for injunctive relief, would be a person under §
1983 because official-capacity actions for prospective relief
are not treated as actions against the State.”
(internal quotation marks and citations omitted)). Amendment
is therefore not futile.
HEREBY ORDERED that the Report and Recommendation (ECF No.
79) is ADOPTED IN PART and REJECTED IN PART.
FURTHER ORDERED that the Motion to Dismiss (ECF No. 69) is
GRANTED, and the Motion for Summary Judgment (ECF No. 70) is
DENIED without prejudice. The claims against Defendants
Mumpower and Neven are DISMISSED, with leave to amend the
official capacity claims against Neven within fourteen (14)
days. The State of ...