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Sitton v. LVMPD

United States District Court, D. Nevada

July 30, 2018

WILL SITTON, Plaintiff(s),
v.
LVMPD, et al., Defendant(s).

          ORDER

         Presently before the court is defendants Jacqueline Bluth and Elissa Luzaich's motion to dismiss. (ECF No. 21). Plaintiff Will Sitton filed a response (ECF No. 37), to which defendants replied (ECF No. 40).

         Also before the court is defendants Franc Cadet, Kelly Camp, Darren Mecham, Trevor Neville, Lyle Rohan, Andrew Saavedra, Jared Senior, Leo Sloan, and Theodoros Snowden's (“the corrections officers”) partial motion to dismiss. (ECF No. 24). Plaintiff filed a response (ECF No. 38), to which defendants replied (ECF No. 39).

         Also before the court is defendant David Ferrara's first motion to dismiss. (ECF No. 28). Plaintiff filed a response (ECF No. 41), to which defendant replied (ECF No. 44).

         Also before the court is defendant Ferrara's second motion to dismiss. (ECF No. 42). Plaintiff filed a response (ECF No. 52), to which defendant replied (ECF No. 58).

         Also before the court is defendant NaphCare Medical's (‘NaphCare”) motion to dismiss. (ECF No. 74). Plaintiff filed a response (ECF No. 82), to which defendant replied (ECF No. 86).

         Also before the court is plaintiff's motion to extend time to file a response to defendant NaphCare's motion to dismiss. (ECF No. 81).

         Also before the court is plaintiff's motion for reconsideration. (ECF No. 98). Defendant Farrara filed a response (ECF No. 101), to which plaintiff replied (ECF No. 107).

         Also before the court is defendant Las Vegas Review Journal's (“LVRJ”) motion to dismiss. (ECF No. 104). Plaintiff filed a response (ECF No. 110), to which LVRJ replied (ECF No. 111).

         I. Facts

         The following is an abridged summary of the counts in plaintiff's complaint that survived screening.

         a. Count one

         i. Due process

         Plaintiff alleges that officer Neville classified plaintiff, a pretrial detainee, as “max status” to punish plaintiff. (ECF No. 13 at 20). Under this classification, jail officials confined plaintiff to his cell for 23 hours a day on weekdays and 24 hours a day on weekends, denied plaintiff all programs, restricted plaintiff's television viewing options, restricted visitation, and restricted commissary. Id. At the time the complaint was filed, plaintiff had been in solitary maximum lock up for over 730 days. Id.

         Officer Baker required max-status prisoners to wear full restraints at all times when not in their cells. Id. at 21. Due to this punitive policy, plaintiff received injuries to his ankles and wrists. Id. On December 4, 2013, officer Camp, who had seen plaintiff's injuries, forced plaintiff to wear restraints despite plaintiff's open wounds. Id. Officer Mowery also made plaintiff wear restraints despite plaintiff's wounds. Id.

         In March 2015, jail officials changed the full restraint procedure and instead handcuffed prisoners behind their backs. Id. at 22. Officers created pain with the handcuffs by cinching down on plaintiff's wrists when leading him into a cage or room. Id.

         On May 8, 2015, officer Mashore and plaintiff disagreed about plaintiff's tier time. Id. Mashore became verbally threatening and filed a report which falsely stated that plaintiff had threatened Mashore. Id. Jail officials made plaintiff pack up his property to a hospital isolation ward. Id. Later that day, officer Judd moved plaintiff back to a max module. Id.

         On August 18, 2015, after an incident with officer Gardea, officers Cadet and Saavedra interrogated plaintiff about the incident. Id. at 28. Saavedra would not permit plaintiff to press charges against Gardea. Id. Instead, Saavedra wrote plaintiff up and used the false details that Gardea had given Saavedra. Id. Sands and Dumer, officers on the conduct adjustment board (“CAB”), went to plaintiff's cell, did not conduct a hearing, did not want to know who plaintiff's witness was, and walked away. Id. A week later, Sands and Dumer mailed plaintiff a letter sanctioning plaintiff to 60 days confinement which prohibited commissary and visitation. Id. This sanction caused extreme hardship because jail officials did not serve enough food to properly feed a inmates. Id. at 23, 28. As a result, inmates had to supplement their meals by purchasing food from the commissary. Id. Sands and Dumer's sanctions caused plaintiff to lose 70 pounds. Id. at 28.

         ii. Conditions of confinement

         For two months around June 8, 2015, plaintiff did not have any hot water or showers to clean himself. (ECF No. 13 at 25). Plaintiff had to take cold showers because there were no other options. Id. Additionally, while plaintiff was on commissary restriction, he lacked adequate nutrition due to reduced food portions. Id. at 26. Plaintiff suffered from extreme hunger pains, physical/mental trauma, and fatigue. Id.

         From October 31, 2015 through December 1, 2015, only cold air blew through plaintiff's cell vents. Id. at 37. Plaintiff repeatedly asked officers and sergeants for heat. Id. In December, the temperature in the cells was extremely cold and there was still no heat. Id. Plaintiff caught colds, his joints hurt, he had a hard time walking, and could not sleep because of the cold temperature. Id. Jail officials denied plaintiff's requests for extra blankets and extra food portions for warmth. Id.

         iii. Excessive force

         On August 18, 2015, Gardea punished plaintiff for complaining about the lack of medical care he was receiving and about the loss of tier time. (ECF No. 13 at 27). Gardea's brother had denied plaintiff's tier time. Id. While plaintiff was in the day room, Gardea clamped down twice on plaintiff's handcuffs to cause plaintiff pain and then clamped down again when plaintiff was in his cell. Id. Gardea forcibly clamped down and dragged the cuffs up and down plaintiff's arm which caused severe injuries such as bruising and swelling to plaintiff's right arm and wrist. Id. Gardea tried to put plaintiff's arm through the food slot with the cuffs on until Gardea's brother told Gardea to stop and take the cuff off of plaintiff. Id. Jail officials had to x-ray plaintiff due to the extensive bruising to his right arm, wrist, and hand. Id.

         b. Count two

         On April 11, 2012, while on tier time, Jane Doe nurse approached plaintiff but would not apply plaintiff's pain numbing patch as prescribed. (ECF No. 13 at 38). Jane Doe insulted plaintiff and was “racially disrespecting” plaintiff in front of officers Sloan and Rohan who were black. Id. Due to plaintiff's remarks to Jane Doe, Sloan ordered plaintiff to lock down. Id. Even though plaintiff complied, Sloan would not shut plaintiff's cell door. Id. When plaintiff asked Sloan to shut his cell door, Sloan refused and looked like he was going to attack plaintiff causing plaintiff to stand up ready to defend himself. Id. Rohan ran into the cell and slammed plaintiff into the corner of the cell and snapped plaintiff's previously injured neck. Id. Barrowes refused to permit plaintiff to press charges. Id.

         Plaintiff filed complaints against Sloan and Rohan for harassment and intimidation after they were assigned to plaintiff's housing module. Id. at 39. When Rohan moved plaintiff to a different cell, Rohan told plaintiff that he would give plaintiff a shot “at the title” when plaintiff was “out in gangster fashion.” Id. Plaintiff alleges that he has been “racially prejudiced” by Sloan and Rohan and treated indifferently by officers Barrowes and Graham through “racial prejudice.” Id.

         c. Count three

         On February 28, 2013, jail officials were having a “cell search shakedown” for a weapon in plaintiff's module. (ECF No. 13 at 40). The SERT team performed the search and destroyed lots of paper work and personal property. Id. The SERT officers threatened inmates with serious injury or death if the inmates failed to comply and held shotguns at point blank range at the inmates' heads. Id.

         While plaintiff was cleaning up his cell after the search, a SERT officer went into plaintiff's cell and told plaintiff to face the wall hands up. Id. After plaintiff complied, the officers cuffed plaintiff's hands behind his back and escorted plaintiff to the recreational yard and made plaintiff stand with his nose to the wall. Id. at 40-41. An officer told plaintiff to get down on his knees. Id. at 41. However, plaintiff could not get down because of his knee injuries. Id. Mecham tried to sweep plaintiff's legs out from underneath plaintiff. Id. Doe officers slammed plaintiff backwards and injured plaintiff's neck and head. Id. After plaintiff hit the concrete in handcuffs, Doe officers rolled plaintiff onto his back and stood on his back. Id. Another set of Doe officers and Cera cuffed plaintiff's ankles as tight as they could and stood on plaintiff's legs and ankles and pushed down. Id. The body weight caused injury to plaintiff's ankles and knees. Id. Doe officers and Cera pushed plaintiff's legs toward his head and caused pain in plaintiff's knees. Id. at 41-42.

         In the meantime, plaintiff was suffocating from the Doe officers on his back. Id. at 42. After plaintiff returned to consciousness from the lack of air, Doe officer put a tazer in plaintiff's mouth. Id. Mendoza told Doe officer to push on plaintiff harder and to put the tazer in plaintiff's mouth. Id. When the officers stopped, plaintiff's boxers were pulled down to his knees and the officers laughed at plaintiff as they walked away. Id. Plaintiff went into convulsions. Id. Mendoza kicked plaintiff with his boot. Id. at 42-43.

         According to plaintiff, the SERT officers had assaulted plaintiff for “political reasons.” Id. at 43. Plaintiff requested medical help. Id. Plaintiff suffered from neck, head, wrist, and ankle injuries, was on pain ...


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