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Mittal v. Kilpatrick

United States District Court, D. Nevada

May 4, 2017

RAJA MITTAL, Plaintiff,
v.
ROBERT KILPATRICK, M.D., MARC O'CONNOR, M.D., et al, Defendants.

          ORDER

          Kent J. Dawson, United States District Judge

         Presently, 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).[1]

         I.

          Background

         This 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.

         Plaintiff 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.

         Doctors 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.

         Doctors 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 examining X.X.

         Defendants 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 dismiss.

         II. Standard for a Motion to Dismiss

         In 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).

         "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, 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.

         III. Analysis

         In his 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 ...


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