United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE
are several motions pending before the Court, all of which
arise out of an alleged assault by correctional officers on
Plaintiff James Sharkey while he was a pre-trial detainee at
the Clark County Detention Center. The Court has twice
screened Sharkey's proposed complaints and determined
that he has objectively pleaded colorable claims (ECF Nos. 9,
17). Since then, there has been a flurry of filings. First,
Sharkey moved to “assert jurisdiction” (ECF No.
20), where he effectively seeks to amend his complaint to add
defendants. Next, Defendant NaphCare, Inc. moved to dismiss
(ECF No. 23), to which Sharkey responded (ECF No. 29), and
NaphCare replied (ECF No. 31). Before the Court could rule on
the motion to dismiss, Sharkey moved for summary judgment
(ECF No. 36). The Court stayed the briefing on that motion
until it could decide NaphCare's pending motion to
dismiss. Since then, Sharkey has moved to compel NaphCare to
consolidate its motion to dismiss into its future opposition
to his motion for summary judgment (ECF No. 42) and has filed
two more motions to amend his complaint (ECF No. 51 and ECF
No. 43, which the Court construes as a motion to amend). The
Court will resolve each motion below.
alleges a litany of constitutional deprivations during his
time as a pre-trial detainee at the Clark County Detention
Center (CCDC). The majority of Sharkey's claims arise
from two alleged assaults that Sharkey suffered at the hands
of corrections officers and CCDC's response to those
assaults. Sharkey claims that in the evening of June
13, 2017, Officer Jesse Neville instructed Sharkey and the
other inmates in his cellblock to “lock down for the
rest of the night” and go to bed. Sharkey jokingly
asked Neville to “tell [them] a bedtime story.”
Second Am. Compl. 4, ECF No. 18. In response, Neville
viciously attacked Sharkey in his cell, choking him against
the wall and repeatedly kicking and punching Sharkey after he
lost consciousness. Before Neville left the cell, he told
Sharkey that he could “make him disappear” and
that he would label Sharkey a “snitch” if he
reported the beating. Id at 4-4A.
claims that other officers either failed to protect him or
even retaliated against him after the assault. Specifically,
Sharkey claims that officers in the cafeteria withheld his
meals after the assault. And worse, Sharkey alleges that five
days after the first assault, he had a disagreement with
Special Enforcement Officer Kelsey over Sharkey's phone
use that resulted in a second attack. Id at 5.
Apparently, Kelsey cornered Sharkey in his cell and
repeatedly pushed him up against the wall while screaming,
“stop hitting yourself!” Id at 5A. That
assault stopped when a sergeant pulled Kelsey away from
alleged assaults left Sharkey bruised, bloodied, and in need
of medical care. Clark County contracts with NaphCare, Inc.
to provide medical care to inmates housed at CCDC. Sharkey
submitted a “kite” request for medical attention
at some point before June 18, 2017. Id. at 6D. He
reported finding blood in his urine, possible broken ribs,
bruises and cuts to his face and body, and trauma to his neck
and back. Id at 6D. NaphCare nurses examined Sharkey
regularly over the next two weeks. Id at 6E. On June
18, 2017, a NaphCare nurse started to collect a urine sample
from Sharkey, but the nurse allegedly refused to accept
unless it “appeared normal.” Id at
6D-6E. Sharkey submitted another “kite” request
to complain that the nurse had not picked up his sample
within three hours. CCDC Med. Request 32, ECF No. 18. The
nurses responded that there was no set time frame within
which a urine sample must be retrieved. Sharkey's
complaint is unclear whether he received the urinalysis
results. However, Sharkey did not submit a grievance over the
nurses' handling of his urine sample.
Neville's alleged threats and the other officers'
retaliation, Sharkey reported his assault to an Officer
Lewis. In response, multiple prison officials “rushed
in [to] photograph” Sharkey's injuries. Id
at 4A. The internal affairs office opened an investigation.
Id at 4B. They questioned Sharkey about the attack,
but he refused to answer their questions because they
“did not lay out a foundation of why it would be safe
to speak to them.” Id at 4C. Sharkey also
reported the assaults to the Citizens Review Board, which
communicates with internal affairs department to correct CCDC
practices. Id at 4B. The results of that
investigation are unclear from the complaint.
filed this case in early 2018. His first complaint alleged
eleven total causes of action against nine different
defendants. The Court screened the complaint and dismissed
several of the claims and defendants. ECF No. 9. Sharkey
pared his first amended complaint to five total causes of
action. First, Sharkey alleged a Fourteenth Amendment
violation against Officer Neville for excessive force,
failure to protect, and failure to investigate. In its
screening order, the Court determined that Sharkey's
excessive force and failure to protect claims were
sufficiently pleaded, but it dismissed his failure to
investigate claim because Sharkey cannot dictate the way CCDC
investigates prisoner complaints. Screening Order 6, ECF No.
17. Second, Sharkey alleged a similar claim against Officer
Kelsey for his alleged assault. The Court's screening
order allowed that claim to proceed. Id at 6-7.
Third, Sharkey alleged a First Amendment free exercise claim
arising out of his access to religious services while at
CCDC. The Court allowed that claim to proceed. Id at
7. Fourth, Sharkey alleged a conditions-of-confinement claim
against an Officer Okolovich and Sheriff Lombardo for their
part in cafeteria officials withholding Sharkey's meals.
The Court also allowed that claim to proceed. Id at
11-12. Finally, Sharkey alleged a Fourteenth Amendment
deliberate indifference claim against NaphCare, Inc. and Doe
doctors and nurses for their medical response to his
injuries. The Court also allowed that claim to proceed.
Id at 13.
Mariah Mendoza, Blake Okolovich, Jesse Neville, Kenneth
Kelsey, and Sheriff Joseph Lombardo (“county
defendants”) have answered Sharkey's complaint, and
NaphCare has moved to dismiss. Meanwhile, Sharkey has filed
several motions including a motion for summary judgment to
which the county defendants responded. The Court now turns to
those pending motions.
constitution guarantees indigent parties “meaningful
access to the courts.” Bounds v. Smith, 430
U.S. 817, 821-23 (1977). The Court understands that their
pleadings may lack the refinement of retained-counsel's
filings. As a result, the Court holds these documents to a
“less stringent standard than formal pleadings
drafted by lawyers.” Estelle v. Gamble, 429
U.S. 97, 106 (1976). Indeed, the Court construes pro se
pleadings liberally and in that party's favor. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). That leeway
is limited to the allegations in the pleadings themselves. It
does not exempt a pro se parties from following the rules of
procedure. Ghazali v. Moran, 46 F.3d 52, 53 (9th
Cir. 1995) (pro se parties are still “bound by the
rules of procedure”). Accordingly, the Court will only
dismiss a pro se complaint if it is clear that “the
plaintiff can prove no set of facts” that would entitle
him to relief. Estelle, 429 U.S. at 106.
are seven motions pending in this case, but only two are
potentially dispositive motions: NaphCare's motion to
dismiss (ECF No. 23) and Sharkey's motion for summary
judgment (ECF No. 36). The Court need not resolve the pending
motions in any particular order. Dietz v. Bouldin,
136 S.Ct. 1885, 1892 (2016) (the Court has the inherent
authority to manage its docket for the efficient resolution
of its cases). Given that NaphCare's motion to dismiss
and Sharkey's motion for summary judgment are potentially
dispositive, the Court elects to evaluate them first.
Resolving those motions first may eliminate unsupported
claims, dismiss parties, and provide clarity to the remaining
motions on the docket.
NaphCare's Motion to Dismiss
brings one Fourteenth Amendment claim against NaphCare and
several Doe doctors and nurses. He claims that NaphCare, Inc.
and its individual employees were deliberately indifferent to
his serious medical needs following the June 13 assault.
Importantly, Sharkey does not allege that NaphCare failed to
treat him. He argues that NaphCare's treatment was not
reasonable considering the seriousness of his injuries.
NaphCare moves to dismiss for two reasons. First, it argues
that Sharkey did not allege that NaphCare's failure to
treat Sharkey was due to any policy, custom, or practice as
required by Monell v. Dep't of Soc. Servs. of City of
New York, 436 U.S. 658 (1978). Alternatively, NaphCare
argues that Sharkey failed to exhaust his administrative
remedies prior to filing this suit. If true, either argument
Court applies a two-step approach when considering a motion
to dismiss. First, it accepts the plaintiff's
well-pleaded factual allegations as true. Legal conclusions
or mere recitals of the elements of a cause of action, on the
other hand, do not receive the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Then,
the Court considers whether the remaining factual allegations
in the complaint allege a plausible claim for relief.
Id. at 679. A claim is plausible if its pleaded
facts allow the Court to draw a ...