United States District Court, D. Nevada
J. Dawson, United States District Judge
before the Court is the Joinder (#64) of Defendants Robert A.
Kilpatrick and Marc O'Connor to Defendants Michael O.
Nyarko and Wiliam Downey's Motion to Dismiss (#49), Clark
County Defendant's Motion to Dismiss (#52) and Defendant
Katowich's Motion to Dismiss (#53).
case arises out of Plaintiffs claims that Defendants
conspired in violation of his constitutional rights to
deprive him of custody of his minor son X.X. Plaintiff
contested custody of his son in family court and fought a
lengthy custody battle forced by charges of abuse in juvenile
court. Though Plaintiff initially asserted that his ex-wife
and her father were abusing his son X.X., Child Protective
Services ("CPS") later brought an adversary
proceeding against Plaintiff in juvenile court asserting that
X.X. was harmed by Plaintiffs behavior. Eventually, Plaintiff
and the State settled the claims with Plaintiff Raja Mittal
admitting liability on a claim of educational neglect. As
part of that settlement, no further civil or criminal claims
were brought against him. However, Mittal would be required
to take sexual boundaries classes. Mittal claims that he was
deceived about those classes and would not have entered into
the settlement agreement if he had known.
then filed the present action claiming that virtually every
one ever involved in those proceedings - from doctors, to
social workers, to his own attorney - were involved in a
grand conspiracy to deprive him of access to X.X. and to hide
the sexual abuse that Mittal alleged X.X.'s maternal
grandfather was inflicting on him. The decision of the
juvenile court finding Plaintiff liable on a charge of
educational neglect has never been overturned.
Kilpatrick and O'Connor have been named as Defendants in
this case. In the seventy-two (72) page complaint only one
paragraph contains factual allegations against Kilpatrick and
O'Connor. See First Amended Complaint, Doc. No.
48, p. 40, 1. 18-28. That paragraph alleges that Dr.
Kilpatrick gave a false statement to the police. It also
alleges that O'Connor and Kilpatrick spent less than a
minute superficially examining X.X. when he was brought to
the emergency room.
Kilpatrick and O'Connor are named as Defendants - as all
defendants are named -in Plaintiffs First through Fourth
Causes of Action for various violations of Plaintiff s
constitutional rights, conspiracy to deny Plaintiff of his
constitutional rights, and failure to prevent the deprivation
of Plaintiff s constitutional rights. Kilpatrick and
O'Connor are also included, generally, in Plaintiffs
Seventh Cause of Action for negligence per se, and Fourteenth
Cause of Action for medical malpractice. Plaintiff
essentially alleges the doctors acted negligently when
Downey and Nyarko filed a motion to dismiss Plaintiffs First
Amended Complaint asserting that they are not state actors
subject to liability under civil rights claims, the medical
claims are time-barred, and the malpractice claims are
"void ab initio" due to Plaintiffs failure
to include an affidavit by a medical expert that supports the
allegations of the action. Defendants Kilpatrick and
O'Connor filed the present motion to join the motion to
Standard for a Motion to Dismiss
considering a motion to dismiss, "all well-pleaded
allegations of material fact are taken as true and construed
in a light most favorable to the non-moving party."
Wyler Summit Partnership v. Turner Broadcasting System,
Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation
omitted). Consequently, there is a strong presumption against
dismissing an action for failure to state a claim. See
Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th
Cir. 1997) (citation omitted).
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, 129 S.Ct. 1937, 1949 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Plausibility, in the context of a motion to
dismiss, means that the plaintiff has pleaded facts which
allow "the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id. The Iqbal evaluation illustrates a two
prong analysis. First, the Court identifies "the
allegations in the complaint that are not entitled to the
assumption of truth, " that is, those allegations which
are legal conclusions, bare assertions, or merely conclusory.
Id. at 1949-51. Second, the Court considers the
factual allegations "to determine if they plausibly
suggest an entitlement to relief." Id. at 1951.
If the allegations state plausible claims for relief, such
claims survive the motion to dismiss. Id. at 1950.
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 alleges negligence per ...