United States District Court, D. Nevada
REDDY M. MARTINEZ, Plaintiffs,
THE STATE OF NEVADA, DEPARTMENT OF CORRECTIONS, et al., Defendants.
before the court is defendants James Dzurenda, Ted Hanf,
Dwight Neven, and Brian Williams'
(“defendants”) motion to dismiss. (ECF No. 18).
Plaintiff Reddy M. Martinez (“plaintiff”) filed a
response to the motion (ECF No. 24), and defendants
subsequently replied (ECF No. 25). As an initial matter, the
court will grant the parties' stipulation regarding the
response deadline for the instant motion. (ECF No. 23).
brings this lawsuit pursuant to 42 U.S.C. § 1983 for
events that occurred while he was incarcerated at High Desert
State Prison (“HDSP”) and the Pioche Conservation
Camp (“PCC”) under the custody of the Nevada
Department of Corrections (“NDOC”). (ECF No. 1).
Plaintiff was a prisoner when the present complaint was filed
but has since been discharged from custody. (ECF No. 24 at
February 27, 2012, plaintiff was taking a shower when the
unit correctional officer, Mr. Bass, told him “to hurry
up” and finish bathing so that he could line up to take
medication unrelated to the current claim. (ECF No. 1-2 at
8). While stepping out of the shower, plaintiff slipped and
subsequently injured his right bicep by falling on the cement
edging surrounding the bathing area. (Id.).
Plaintiff informed Mr. Bass and “Nurse Patty”
about his fall, showed them his bicep, and requested that he
be granted immediate medical care, which was denied.
(Id.). Neither Mr. Bass nor “Nurse
Patty” filed an incident report. (Id.).
filed an informal grievance stating that he had been denied
appropriate medical assistance on May 9, 2012, which was
denied on June 25, 2012. (Id. at 10, 15). In
response to the denied informal grievance, plaintiff then
submitted a first-level grievance on June 25, 2012, which was
denied on August 22, 2012, by the HDSP warden and a medical
care associate. (Id. at 10).
his first-level grievance was pending, plaintiff met with an
unnamed surgeon on August 4, 2012, who told plaintiff
“that too much time had elapsed and it was too late to
perform surgery” to repair the injured bicep.
(Id. at 10).
submitted his second-level grievance on September 7, 2012,
which was denied on October 8, 2012, for reasons in
accordance “with the first level response.”
(Id. at 11). Plaintiff had also filed a medical kite
to which Linda Adams responded on September 9, 2012, that he
was “on the list.” (Id. at 12).
Plaintiff alleges that such a response suggests that he would
be treated when medical personnel
“fe[lt]-like-getting-around-to-it, ” and the
delay caused “permanent and lasting” injury to
his bicep in violation of the Eighth Amendment. (Id. at
October 19, 2012, plaintiff has filed numerous additional
kites and an additional grievance, was transferred to PCC,
and has been discharged from NDOC custody. (Id. at
13). Plaintiff filed his first complaint on April 5, 2013,
which was dismissed following a telephonic conference on June
25, 2015, during which plaintiff acknowledged that the
defendants “were not served with the
[c]omplaint.” (ECF No. 25-1 at 3). Plaintiff submitted
additional complaints after the first complaint's
dismissal. (ECF Nos. 24-1, 24-3, 24-6). He filed the current
complaint in state district court on February 26, 2016, which
defendants removed to this court. (ECF No. 1). The first
defendants were served on June 16, 2016. (ECF No. 1-3).
court 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.” Fed.R.Civ.P. 8(a)(2). Although rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
However, this requirement is inapplicable to legal
conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged - but not shown
- that the pleader is entitled to relief.” Id.
at 679. When the allegations in a complaint have not crossed
the line from conceivable to plausible, plaintiff's claim
must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not ...