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Perez v. State

United States District Court, D. Nevada

September 20, 2017

VICTOR PEREZ, as Special Administrator of the Estate of CARLOS PEREZ, deceased and as Guardian Ad Litem for S.E.P. and A.I.P., Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS' MOTIONTO DISMISS (ECF NO. 90)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         This action arises from the death of inmate Carlos Perez on November 12, 2014. Perez was shot with birdshot by a correctional officer while in the custody of the Nevada Department of Corrections (“NDOC”) at High Desert State Prison (“HDSP”). The plaintiff is Carlos's brother, Victor Perez, on behalf of Carlos's estate and as the guardian ad litem to Carlos's two minor children. The plaintiff brings this action against the State of Nevada and seven NDOC employees in their individual capacities.

         The amended complaint asserts claims against all the defendants for: (1) excessive force, deliberate indifference to serious medical needs, and loss of familial association under 42 U.S.C. § 1983; (2) wrongful death; and (3) intentional infliction of emotional distress (“IIED”). ECF No. 75. The amended complaint also asserts a claim of negligent training, supervision, and retention against defendants State of Nevada; Greg Cox, former Director of NDOC; and Dwight Neven, Warden at HDSP. Id.

         Defendants State of Nevada, Cox, Neven, Timothy Filson (Assistant Warden at HDSP), and Ronald Oliver (Corrections Officer at HDSP) move to dismiss. The parties are familiar with the allegations and I set them out in a prior order, so I do not repeat them here. ECF No. 72. I grant in part and deny in part the defendants' motion to dismiss.

         I. LEGAL STANDARD

         A properly pleaded 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); Bell Atl. 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). “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must “contain[ ] enough facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 696 (internal quotation and citations omitted).

         I apply a two-step approach when considering motions to dismiss. Id. at 679. First, I must accept as true all well-pleaded factual allegations and draw all reasonable inferences from the complaint in the plaintiff's favor. Id.; Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247-48 (9th Cir. 2013). Legal conclusions, however, are not entitled to the same assumption of truth even if cast in the form of factual allegations. Iqbal, 556 U.S. at 679; Brown, 724 F.3d at 1248. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Iqbal, 556 U.S. 678.

         Second, I 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 complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 663. 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 shown-that the pleader is entitled to relief.” Id. at 679 (internal quotation and citation omitted). When the claims have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the [district] court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         II. ANALYSIS

         A. Section 1983 Claims[1]

         To establish liability under 42 U.S.C. § 1983, a plaintiff must show the deprivation of a right secured by the Constitution and laws of the United States, and must show that the deprivation was committed by a person acting under color of state law. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). The defendants do not contest that they acted under color of law. Thus, the dispute centers on whether they violated Carlos's constitutional rights.

         The parties also dispute whether the defendants are entitled to qualified immunity. To allay the “risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties, ” government officials performing discretionary functions may be entitled to qualified immunity for claims made under § 1983. Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In ruling on a qualified immunity defense, I consider whether the evidence viewed in the light most favorable to the nonmoving party shows the defendant's conduct violated a constitutional right. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). If the plaintiff has shown the defendant violated a constitutional right, I then must determine whether that right was clearly established. Id.

         A right is clearly established if “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003) (emphasis omitted) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). I make this second inquiry “in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. An officer will be entitled to qualified immunity even if he was mistaken in his belief that his conduct was lawful, so long as that belief was reasonable. Wilkins, 350 F.3d at 955.

         1. Excessive Force

         The Eighth Amendment to the United States Constitution prohibits “cruel and unusual” punishment. U.S. Const. amend. VIII. “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quotation omitted). To establish an Eighth Amendment violation based on a use of force, a plaintiff must show the amount of force used was more than de minimis or otherwise involved force “repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (quotation omitted). Additionally, the plaintiff must show the prison official acted with a culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

         When an Eighth Amendment claim is based on an allegation that a prison official used excessive physical force, the culpable state of mind inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm, ” rather than a deliberate indifference standard. Hudson, 503 U.S. at 6-7 (citing Whitley, 475 U.S. at 320-21). “[P]rison administrators are charged with the responsibility of ensuring the safety of the prison staff, administrative personnel, and visitors, as well as . . . the safety of the inmates themselves.” Whitley, 475 U.S. at 320 (quotation omitted). Consequently, the deliberate indifference standard “does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions ...


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