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Tripp v. Clark County

United States District Court, D. Nevada

December 2, 2019

JUSTIN L. TRIPP, Plaintiff,
v.
CLARK COUNTY, et al., Defendants.

          ORDER

          BRENDAWEKSLER UNITED STATES MAGISTRATE JUDGE

         Presently before the Court are eleven motions (ECF Nos. 44, 53, 58, 67, 69, 70, 75, 76, 82, 91, 94), which the Court will address following a short recitation of the background of this case.

         I. Background

         Plaintiff is a pro se prisoner in the custody of the Federal Bureau of Prisons. This case arises from Plaintiff's allegations that: in March of 2016, he was arrested by Officers Torres and Rose. While being arrested, the officers beat him with their fists and metal batons. Plaintiff lost consciousness twice and suffered several injuries, including a facial contusion, dozens of superficial injuries, a dislocated shoulder, and broken arm. After the beating ended, officers handcuffed Plaintiff behind his back, which caused extreme pain. He was then taken to a hospital to treat his injuries where, among other things, he was given a sling for his broken arm. After this, he was taken to the Clark County Detention Center (CCDC) and handcuffed to a bench for approximately 24 hours. During this time, he could not stand up, lie down, use the restroom, get water, or feed himself and was in extreme pain. A few days later, Officer Esparza at CCDC took his sling away from him even though hospital staff told Plaintiff he was to wear it for several weeks.

         As a result of these alleged events, Plaintiff filed a complaint against numerous defendants and an in forma pauperis application. Before screening Plaintiff's complaint, the Court sent Plaintiff forms and instructions for filing a Section 1983 complaint and gave him 30 days to file an amended complaint. (EC No. 8.) Plaintiff filed an amended complaint on January 7, 2019. (ECF No. 14.) The Court reviewed the First Amended Complaint and determined that it stated five plausible claims: (1) Fourth Amendment excessive force against defendants Torres and Rose; (2) Fourteenth Amendment inadequate medical care against defendants Rose, Torres, and John Doe #1; (3) Fourteenth Amendment conditions of confinement against defendant John Doe #1; (4) Fourteenth Amendment inadequate medical care against defendants NaphCare, Inc., Dr. Duran, Eric Lopez, nurse Rachel, and John Does #2, 3, 4, 5, and 6; and (5) Fourteenth Amendment inadequate medical care against defendant Esparza. (ECF No. 18 (Screening Order).) The Court also dismissed defendants Clark County, Las Vegas Metropolitan Police Department (LVMPD), Andrea Beckman, and Dr. Johnson without prejudice. (Id.)

         II. Plaintiff's Motions to Amend First Amended Complaint and to Strike Defendants' Response to This Motion (ECF Nos. 44 and 58)

         A. The Parties' Arguments

         Plaintiff filed a motion to amend on March 18, 2019. (ECF No. 44.) Defendants responded on April 1, 2019. (ECF No. 47.) Plaintiff replied on April 15, 2019 and moved the Court to strike Defendants' response. (ECF Nos. 58, 59). To this motion to strike, Defendants responded (ECF No. 66) but Plaintiff did not reply.

         In Plaintiff's proposed Second Amended Complaint, he attempts to add additional factual allegations to make out Monell claims. That is, he attempts to make out claims that LVMPD, CCDC, [1] and Clark County have customs or policies of “keeping detainees in severe pain, ” handcuffing inmates to a bench for extended periods, and disallowing inmates to have any medical devices while in the general population of the jail.

         Defendants oppose Plaintiff's motion to amend, arguing that amendment would be futile. This is so, according to Defendants, because Plaintiff fails to allege any facts supporting his theory that LVMPD, CCDC, or Clark County have these alleged customs or policies. Defendants argue that Plaintiff's assertions are conclusory and only based on his personal experiences “from an isolated incident.”

         In Plaintiff's reply, he first moves the Court to strike Defendants' response “because the Defendant that is [responding] against the Monell claims isn't a party to them.”[2] Plaintiff continues by arguing that “this defendant has no interest in this Monell claim . . . .” It appears to the Court that Plaintiff may be attempting to make a standing argument. However, the Court denies Plaintiff's motion to strike Defendants' response (ECF No. 58) because he provides no authority to support this argument. LR 7-2 (“The failure of a moving party to file points and authorities in support of the motion constitutes a consent to the denial of the motion.”). In the future, Plaintiff is advised that he must support his arguments with relevant legal authority (for example, statutes or case law).

         Plaintiff continues in his reply by addressing Defendants' argument that he has not offered enough factual allegations in his proposed Second Amended Complaint to state Monell claims. He starts, by way of background, explaining why his new allegations were not included in his original complaint. He describes, in detail, the legal forms that inmates are given to fill out when they are pursuing a claim, including the limited number of lines and pages inmates are allowed to use for each section and what each section tells the inmate to write. Plaintiff writes that he “believes that the forms and instructions are designed to streamline lawsuits and to prevent overly writing claims . . . .” However, he argues that the forms are vague and fail to give some inmates enough space to make out their claims. He argues further that some of the instructions, specifically those that tell the inmates “not to cite legal authority or to cite case law” in certain sections can set up a “trap” for legally unsophisticated inmates. He notes that this happened to him, stating that he only referenced “LVMPD sett[ling] a[nother] suit for this exact same civil rights violation” without further detail in his proposed Second Amended Complaint because “the instructions [on the form] said not to cite legal authority or to cite case law.” He also states that he did not originally plead Monell claims because he did not have access to a law library at the time.

         Plaintiff then addresses the substance of Defendants' claim that he has not plead enough facts in his proposed Second Amended Complaint to assert Monell claims. In response to Defendants' assertion that Plaintiff “does not identify the policy” at issue, Plaintiff argues, “Plaintiff need not identify the precise policy or custom at issue, which would be difficult for an inmate to do without detailed records of LVMPD policies, customs or practice[s] . . . .” In response to Defendants' assertion that Plaintiff's allegations are only based on “his personal experience from an isolated incident[, ]” Plaintiff disagrees.

         Regarding his allegation in Count II that “LVMPD must have a policy then for keeping detainees in severe pain, ” Plaintiff alleges that several officers were all “a party” to handcuffing him behind his back while his shoulder was dislocated.

         Regarding his allegation in Count III that “CCDC/Clark County/LVMPD has a custom, policy and a known history” of handcuffing inmates to a specific bench for extended periods, Plaintiff alleges that while he was handcuffed to the bench, at least four other people were all handcuffed to the same bench. He also cites Cooley v. Marshal, a case in which an inmate at CCDC sued (and won) over being handcuffed to a bench for an extended period. 2015 WL 4622589, at *3 (D. Nev. July 31, 2015), aff'd in part, rev'd in part and remanded sub nom. Cooley v. Meads, 728 Fed.Appx. 773 (9th Cir. 2018) (reversed only on district court's refusal to give punitive damages instruction to jury). Plaintiff notes that in Cooley, Judge Du specifically noted that “the court is concerned about the constitutionality of the Detention Center's practice of restraining detainees to a bench as a solution to the shortage of isolation cells, ” but did not address the constitutionality of this policy as plaintiff “ha[d] not asserted a claim under Monell.” Id. at *3 n. 3. Plaintiff writes that he wants a Monell claim for this practice to be before the Court now.

         Turning to Plaintiff's claim that LVMPD, CCDC, and Clark County have a policy of disallowing inmates to have any medical devices in the general population, Plaintiff argues that this claim is not based on solely on his own experience. He writes that it is also based on two other facts: (1) in his twenty months at CCDC, he never saw another inmate with a medical device and (2) Officer Cesar Esparza told him that CCDC does not allow medical devices outside of the medical unit.

         B. Legal Standard

         Generally, a party may amend its pleading once “as a matter of course” within twenty-one days of serving it, or within twenty-one days after service of a responsive pleading or motion under Rule 12(b), (e), or (f). Fed.R.Civ.P. 15(a)(1). Otherwise, “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. “The court considers five factors [under Rule 15] in assessing the propriety of leave to amend-bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011).

         Here, Defendants challenge Plaintiff's motion to amend on futility grounds only, arguing that Plaintiff's Monell claims are futile. A proposed amendment is futile if it could not withstand a Rule 12(b)(6) motion for failure to state a claim. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). In order to establish a Monell claim (i.e. liability for governmental entities under 42 U.S.C. § 1983), a plaintiff must prove “(1) that [the plaintiff] possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff's constitutional right; and, (4) that the policy is the moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Here, Defendant argues that Plaintiff failed to plead factual allegations in support of the second element - that the municipality had a policy. (ECF No. 47 at 3 (“Plaintiff fails to state a cognizable Monell claim against LVMPD because his claim has no factual content from which the Court may draw a reasonable inference that LVMPD is liable for an unconstitutional policy.”).)

         “Plaintiffs need not meet any heightened pleading standard to assert a § 1983 claim.” J.M. by & Through Rodriguez v. Cty. of Stanislaus, 2018 WL 5879725, at *4 (E.D. Cal. Nov. 7, 2018). And although the Court must presume all factual allegations in Plaintiff's complaint are true, the Court does not “have to accept every allegation in the complaint as true in considering its sufficiency; rather, . . . [we] will examine whether conclusory allegations follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992). To the extent that conclusory allegations do not follow from the facts alleged, the Court will reject these conclusions and find that the Plaintiff failed to state a claim. Id.

         C. Analysis

         As explained in more detail below, the Court finds that Plaintiff failed to include sufficient facts in his proposed Second Amended Complaint to make out Monell claims. However, based on Plaintiff's reply brief, the Court believes that Plaintiff may be able to plead sufficient facts to make out Monell claims. Accordingly, the Court will deny Plaintiff's Motion to Amend (ECF No. 44) without prejudice.

         In Count II of Plaintiff's proposed Second Amended Complaint, Plaintiff alleges that after officers beat him, dislocated his shoulder, and broke his arm, several officers “kept the plaintiff handcuffed behind his back.” (ECF No. 44-1 at 8.) He goes on to allege that “[j]unior officers did the cuffing, supervising officers allowed it, and LVMPD must have a policy then for keeping detainees in severe pain even though he is completely surrounded and he could be handcuffed in front, or shackled.” (Id.) Although Plaintiff provides additional factual allegations about his encounter with officers, he does not provide any additional factual allegations regarding any alleged policy. The Court gathers from Plaintiff's reply brief that he believes LVMPD has an official policy or custom of keeping detainees in pain based on his experience with several officers allegedly being complicit in this conduct toward him. (ECF No. 59 at 4-5.) However, Plaintiff's allegations in his reply brief cannot be “read into” his proposed complaint. And even if they could, they do not provide sufficient factual allegations to support the conclusion that LVMPD has a policy or custom of keeping detainees in severe pain. Accordingly, the Court will deny Plaintiff's motion to amend Count II.

         In Count III of Plaintiff's proposed Second Amended Complaint, Plaintiff alleges that “CCDC/Clark County/LVMPD has a custom, policy, and a known history of using this bench even though it is below the dignity of a man, and further LVMPD sett[l]ed suit for this exact same civil rights violation . . . .” (ECF No. 44-1 at 9.) Plaintiff also alleges that “CCDC/LVMPD has a policy of using this bench as a punishment//torture device, and has in the past settled litigation dealing with this very same issue.” (Id. at 5.) Plaintiff does not include any additional facts in his proposed complaint about this alleged policy or facts to support the conclusion that such a policy exists. However, in his reply in support of his motion to amend, Plaintiff alleges that while he was handcuffed to the bench, at least four other people were all handcuffed to the same bench. He also cites Cooley v. Marshal, a case in which an inmate at CCDC sued (and won) over being handcuffed to a bench for at least 15 hours. 2015 WL 4622589, at *3-4 (D. Nev. July 31, 2015), aff'd in part, rev'd in part and remanded sub nom. Cooley v. Meads, 728 Fed.Appx. 773 (9th Cir. 2018) (reversed only on district court's refusal to give punitive damages instruction to jury). Plaintiff notes that in Cooley, Judge Du specifically noted that “the court is concerned about the constitutionality of the Detention ...


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