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Muric-Dorado v. LVMPD

United States District Court, D. Nevada

November 15, 2019

RAMON MURIC-DORADO, Plaintiff,
v.
LVMPD, et al., Defendants.

          ORDER

          ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiff Ramon Muric-Dorado's (“Plaintiff”) Motion for Leave to File a Supplemental Complaint Pursuant to Rule 15(d) Fed.R.Civ.P. (ECF No. 24). Plaintiff's Motion was filed on October 25, 2019. The Court interprets the Motion to seek to add Corrections Officer Bunch in place of John Doe Defendant in Count 13 of his existing Complaint. Defendant further interprets Plaintiff's Motion as seeking to add Count 27, which is alleged under the First, Eighth, and Fourteenth Amendments to the U.S. Constitution, as a violation of Plaintiff's Eighth Amendment rights. The Court also notes that Plaintiff states he “has determined that true names and or Badge Numbers for John/Jane Does of Count 12, and Count 13, and Count 18, and Count 19” of his Second Amended Complaint. Before ruling on Plaintiff's Motion, the Court summarizes what claims currently exist and against which Defendants.

         I. PREVIOUS REVIEWED CLAIMS

         In its October 1, 2019 Order, the Court found as follows:

Counts 1 through 11: These claims were dismissed with leave to amend. The Court explained that these claims are properly brought through a habeas corpus action and not through a Section 1983 action. The Court sent Plaintiff a copy of the 28 U.S.C. § 2254 form (a federal habeas form) as a courtesy. Plaintiff pointed out that he was a pretrial detainee at the time and could bring an action under Section 2241, which the Court confirmed. However, under any circumstances, these claims could not be bought under 42 U.S.C. § 1983. ECF No. 22 at 5.
Count 12: This claim was dismissed as alleged under the First, Fourth, Fifth, Sixth, and Eighth Amendments of the U.S. Constitution, and under Art. 4, § 17 of the Nevada Constitution. However, the Court interpreted the claim as arising under the Fourteenth Amendment Due Process Clause “because [the] Doe classification committee appears to have punished plaintiff for 406 days by holding plaintiff in solitary confinement without a hearing.” Id. at 7. Thus, Plaintiffs Fourteenth Amendment Due Process Claim against the LVMPD/CCDC Doe Committee remains before the Court. Id. at 26. Plaintiff seeks to add names to his pleading of this claim, which the Court will allow.
Count 13: Plaintiff alleged First, Fourth, Fifth, Eighth and Fourteenth Amendment Claims, as well as state law assault and battery claims arising from a series of events detailed at id. at 8-9. The Court interpreted this as a Fourteenth Amendment due-process grievance process claim, a Fourteenth Amendment denial of access to the grievance procedure claim, a Fourteenth Amendment excessive force claim, a Fourteenth Amendment conditions of confinement claim, a First Amendment-retaliation claim, and a state law assault and battery claim.
• The Court found Plaintiff stated the following colorable claims:
• First Amendment retaliation against Defendants Kelsey, Esparza, Kim, and Portello;
• Fourteenth Amendment denial of access to the grievance procedure against Defendants Kelsey, Mariscal, Esparza, Neumuller, and Maekaelee;
• Fourteenth Amendment excessive force against Defendants Kelsey, Portello, and Kim;
• Fourteenth Amendment conditions of confinement against Esparza and Mariscal (for exercise), and Doe Officers (for denial of proper footwear); and,
• State law assault and battery against Defendants Kelsey, Portello, and Kim.
Id. at 8-13. All other allegations arising in Plaintiffs Count 13 were ...

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