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Weidner v. State

United States District Court, D. Nevada

November 30, 2017

WESLEY WEIDNER, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER

          KENT J DAWSON UNITED SATES DISTRICT JUDGE

         Presently before the Court is Defendants' Motion for Partial Judgment on the Pleadings (#21). Plaintiff filed a response (#25) to which Defendants replied (#27). Also before the Court is Plaintiff's Motion to Amend/Correct Complaint (##24, 26). Defendants filed a response (##29, 30) to which Plaintiff replied (##32, 33).

         I. Background

         Beginning in October 2014, Wesley Weidner (“Plaintiff”) was in the custody of the Nevada Department of Corrections at the High Desert State Prison (“HDSP”) in Indian Springs, Nevada. On March 17, 2015 at approximately 3:40 p.m., HDSP officials were transporting Plaintiff in handcuffs through Unit 3-A when he was stabbed nine times by two inmates with a four to six inch blade. Plaintiff claims the attack was carried out by members of the Aryan Warriors prison gang, and that while the attack was in process, certain defendants failed to intervene and other defendants ran away.

         Approximately one week before Plaintiff was attacked, HDSP confiscated a “kite” that allegedly detailed a “hit” the Aryan Warriors had planned for Plaintiff. Plaintiff alleges HDSP's confiscation of the kite should have put all defendants on notice that there would be an attack.

         Plaintiff brought suit in state court, alleging violations of his Constitutional rights (“Count I”); negligent training, supervision, and retention (“Count II”); and intentional infliction of emotional distress (“Count III”). On September 30, 2016, Defendants removed the present action to federal court. The discovery scheduling order deadline to amend/add was May 23, 2017. (Discovery Scheduling Order #19, at 3). Plaintiff filed his Motion to Amend on May 16, 2017.

         II. Legal Standard

         After the pleadings are closed- but early enough not to delay trial- a party may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are “functionally identical” to a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).

         In reviewing a motion for judgment on the pleadings, the court “must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party.” Fleming v. Pickard, 581 F.3d 922, 9265 (9th Cir. 2009). “[J]udgment on the pleadings is proper when taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law.” Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007) (citations omitted).

         III. Analysis

         The state of Nevada (“the State”) argues it is entitled to judgment on the pleadings as to Counts II and III for lack of subject matter jurisdiction because the Eleventh Amendment provides the State sovereign immunity for state tort claims, and that such immunity has not been waived with respect to these two claims. Further, the State claims it is entitled to judgment on the pleadings as to Count I, stating Section 1983 does not provide a federal forum for litigants seeking damages against a state or state agencies. Last, Plaintiff failed to comply with NRS 41.031's naming requirement. The State incorrectly alleges Plaintiff cannot cure this defect through amendment.

         A. The State Waived Eleventh Amendment Immunity

         The State claims it has Eleventh Amendment immunity from litigation in a federal forum. However, “removal is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive the State's otherwise valid objection to litigation in a federal forum.” Lapides v. Bd. of Regents of Univ. Sys of Ga., 535 U.S. 613, 624 (2002). “[R]emoval itself affirmatively invokes federal judicial authority and therefore waives Eleventh Amendment immunity from subsequent exercise of that judicial authority.” Id. The State removed the present case to this Court, and thereby relinquished its immunity that would provide the basis for a subject matter jurisdiction challenge over the case. Thus, the Court denies Plaintiff's motion for judgment on the pleadings with regard to Counts II and III.

         B.The State Did Not Consent to Plaintiff's ...


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