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Banner v. Las Vegas Metropolitian Police Department

United States District Court, D. Nevada

October 23, 2017

Moshe Banner, Plaintiff,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, a political subdivision of the State of Nevada and the County of Clark; NAPHCARE, medical care provider for the Clark County Detention Center; LT. GRAHAM, in his individual capacity; DEFENDANT C. DUNN P#8253 in his individual capacity; DOE LICENSED PRACTICAL NURSE; RAY MONTENGRO, NP, individually; KA TRINA SIMEON, RN, individually; DOE DEFENDANTS 1-X, individuals or officers employed at CCDC; and ROE ENTITIES 1-X, inclusive, Defendants.


          RICHARD F. BOULWARE, II United States District Judge.


         This case is before the Court on Defendants NaphCare, Ray Montengro, N.P., and Katrina Simeon, R.N. (collectively, “NaphCare Defendants”)' Motion to Dismiss. (ECF No. 17). For the reasons stated below, the Motion to Dismiss is DENIED without prejudice.


         On May 18, 2016, Plaintiff Moshe Banner (“Banner”) filed a Complaint in the Eighth Judicial District Court of Clark County, alleging violations of constitutional and statutory civil rights provisions. (ECF No. 1-1). Specifically, Banner asserts ten causes of action: 1) unlawful arrest in violation of 42 U.S.C. § 1983, against Defendants Graham and Dunn; 2) unlawful imprisonment, in violation of 42 U.S.C. § 1983, against Defendants Graham, Dunn, and Does I-X; 3) due process violation for malicious prosecution, in violation of 42 U.S.C. § 1983, against Defendants Dunn and Graham; 4) deliberate indifference, in violation of 42. U.S.C. § 1983, against all Doe Defendants I-X and Defendants Doe LPN, Montenegro, and Simeon; 5) Monell claims, in violation of 42 U.S.C. § 1983, against Las Vegas Metropolitan Police Department; 6) false arrest, against Defendants Dunn and Graham; 7) intentional infliction of emotional distress, against all Defendants; 8) malicious prosecution, against Defendants Dunn and Graham; 9) false imprisonment, against Defendants Dunn, Graham, and Does I-X; and 10) negligence, against all Defendants. Defendants Las Vegas Metropolitan Police Department (“LVMPD”), Lt. William Graham, and Sargeant Craig Dunn (collectively, “Removing Defendants”) filed a Petition for Removal on July 20, 2016. (ECF No. 1). NaphCare Defendants filed the instant Motion to Dismiss on September 30, 2016. (ECF No. 17). On October 17, 2016, Banner filed a Response to the Motion to Dismiss. (ECF No. 18). NaphCare Defendants Replied on October 27, 2016. (ECF No. 20). On May 9, 2017, this Court held a hearing on the Motion to Dismiss. (ECF Nos. 29, 38).


         The following factual allegations are taken from Banner's original Complaint. (ECF No. 1-1). On or about May 19, 2014, Banner was falsely arrested, without a warrant, by Defendants Dunn and Graham for charges of burglary with use of a deadly weapon and robbery with use of a deadly weapon. The Declaration of Arrest and Arrest Report made by Defendant Dunn and authorized by Defendant Graham are entirely devoid of any details supporting probable cause. LVMPD has in place de facto policies of falsely arresting, prosecuting, and imprisoning individuals, and demonstrating deliberate indifference to the safety and medical needs of pretrial detainees with serious medical conditions. Banner was incarcerated upon arrest at Clark County Detention Center (“CCDC”). Eventually, the criminal case which Defendant Dunn filed against Banner was voluntarily dismissed by the Clark County District Attorney on August 7, 2014.

         During his incarceration, Banner was attacked by other inmates because they believed he was a “snitch.” As a result of the attack, Banner suffered multiple displaced fractures of his jaw.

         Following the attack, Banner sought medical care from Defendants Doe LPN, Montenegro and Simeon, who were each deliberately indifferent to Banner's medical needs by claiming that they were not dentists and they could not help him. Montenegro and Simeon denied Banner medical care, which caused him to suffer excruciating pain. Banner was eventually released from jail, and seen by Dr. Mark L. Glyman, M.D., who performed surgery upon Banner's jaw.


         a. Motion to Dismiss

         In order to state a claim upon which relief can be granted, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In ruling on a motion to dismiss for failure to state a claim, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). 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, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

         b. Nevada Revised Statute § 41A.071

         “If an action for professional negligence is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit that: 1. Supports the allegations contained in the action; 2. Is submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged professional negligence; 3. Identifies by name, or describes by conduct, each provider of health care who is alleged to be ...

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