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Sharkey v. NaphCare, Inc.

United States District Court, D. Nevada

November 8, 2019

JAMES SHARKEY, Plaintiff,
v.
NAPHCARE, INC., et al., Defendants.

          ORDER

          KENT J. DAWSON UNITED STATES DISTRICT JUDGE

         There 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.

         I. Background

         Sharkey 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.[1] 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.

         Sharkey 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 Sharkey.

         The 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.

         Despite 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.

         Sharkey 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.

         Defendant-officers 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.

         II. Legal Standard

         The 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.

         III. Analysis

         There 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.

         A. NaphCare's Motion to Dismiss

         Sharkey 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 justifies dismissal.

         The 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 ...


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