-PAL Jones v. Las Vegas Valley Water District et al, No. 2:2010cv01941 - Document 51 (D. Nev. 2012)
Court Description: ORDER Granting 28 Defendants' Motion to Dismiss Plaintiff's First Amended Complaint; Denying 32 Plaintiff's Motion for Partial Summary Judgment; Denying 48 Plaintiff's Motion for Judgment on the Pleadings; and Denying 46 Plaintiff's Motion for Communication with the Court. Signed by Judge Gloria M. Navarro on 07/05/2012. (Copies have been distributed pursuant to the NEF - AC)
Download PDF
<![CDATA[
-PAL Jones v. Las Vegas Valley Water District et al Doc. 51 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 TERRIS R. JONES, SR. 5 6 7 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) ) LAS VEGAS VALLEY WATER DISTRICT; PAT MULROY; PATRICIA MAXWELL; JANE ) ) GOODROW; HYMAN WALKER; ROBERT ) HULSHOUSER; JAMES TADLOCK; ALAN SCHMIDT; RICHARD TRITLEY; RICHARD ) ) FOX, ) ) Defendants. ) Case No.: 2:10-cv-01941-GMN-PAL ORDER This is an employment discrimination action filed by pro se Plaintiff Terris R. Jones 15 against Defendant Las Vegas Valley Water District (“LVVWD”), and individual Defendants Pat 16 Mulroy, Patricia Maxwell, Jane Goodrow, Hyman Walker, Robert Hulshouser, James Tadlock, 17 Alan Schmidt, Richard Tritley, and Richard Fox (collectively, “Defendants”). Pending before 18 the Court is Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint. (ECF No. 28.) 19 Plaintiff filed a Response (ECF No. 30) and Defendants filed a Reply (ECF No. 31). 20 Also before the Court is Plaintiff’s October 24, 2011 motion (ECF No. 32), styled as a 21 Motion for Partial Summary Judgment. Defendants filed a Response (ECF No. 33) and Plaintiff 22 filed a Reply (ECF No. 34). Plaintiff filed another motion styled as a “Motion for Judgment on 23 the Pleadings; Pursuant to Fed. R. Civ. P. 56(a) LR7-2(a), 56-1” (ECF No. 48). Defendants 24 filed a Response (ECF No. 49) and Plaintiff filed a Reply (ECF No. 50). 25 Also before the Court is Plaintiff’s motion filed March 19, 2012 (ECF No. 46). Page 1 of 10 Dockets.Justia.com 1 I. 2 BACKGROUND On September 15, 2011, the Court granted Defendants’ Motion to Dismiss Plaintiff’s 3 Complaint on the basis of Federal Rule of Civil Procedure 12(b)(6). (ECF No. 24.) The Court 4 gave Plaintiff leave to amend his Complaint, and Plaintiff subsequently filed his First Amended 5 Complaint on September 20, 2011. (ECF No. 25.) 6 In the instant Motion to Dismiss, Defendants move to dismiss all individual defendants, 7 which would leave only Defendant Las Vegas Valley Water District (“LVVWD”). Defendants 8 also move to dismiss Plaintiff’s First through Sixth Causes of Action, as well as the Tenth Cause 9 of Action, against all Defendants. The Court will grant Defendants’ Motion to Dismiss, which 10 leaves Plaintiff’s Seventh, Eighth and Ninth Causes of Action against Defendant Las Vegas 11 Valley Water District. 12 Also before the Court is Plaintiff’s October 24, 2011 motion (ECF No. 32), styled as a 13 Motion for Partial Summary Judgment. Defendants filed a Response (ECF No. 33) and Plaintiff 14 filed a Reply (ECF No. 34). However, as Defendants point out in their response, Plaintiff’s 15 motion fails to comply with Fed. R. Civ. P. 56, as well as Local Rules 7 and 56. Therefore, 16 Plaintiff’s Motion for Partial Summary Judgment will be denied. Plaintiff filed another motion 17 styled as a “Motion for Judgment on the Pleadings; Pursuant to Fed. R. Civ. P. 56(a) LR7-2(a), 18 56-1” (ECF No. 48) that fails for the same reason and will also be denied. 19 II. 20 LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 21 that fails to state a claim upon which relief can be granted. See North Star Int’l. v. Arizona Corp. 22 Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 23 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not 24 give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. 25 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint Page 2 of 10 1 is sufficient to state a claim, the Court will take all material allegations as true and construe them 2 in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th 3 Cir. 1986). 4 The Court, however, is not required to accept as true allegations that are merely 5 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 6 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action 7 with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation 8 is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 9 550 U.S. at 555) (emphasis added). 10 A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) 11 for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino 12 Police Dept., 530 F.3d 1124, 1129 (9th Cir.2008). Rule 8(a)(2) requires that a plaintiff’s 13 complaint contain “a short and plain statement of the claim showing that the pleader is entitled 14 to relief.” Fed. R. Civ. P. 8(a)(2). “Prolix, confusing complaints” should be dismissed because 15 “they impose unfair burdens on litigants and judges.” McHenry v. Renne, 84 F.3d 1172, 1179 16 (9th Cir.1996). Mindful of the fact that the Supreme Court has “instructed the federal courts to 17 liberally construe the ‘inartful pleading’ of pro se litigants,” Eldridge v. Block, 832 F.2d 1132, 18 1137 (9th Cir. 1987), the Court will view Plaintiff’s pleadings with the appropriate degree of 19 leniency. 20 “Generally, a district court may not consider any material beyond the pleadings in ruling 21 on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the 22 complaint may be considered on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner 23 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, “documents 24 whose contents are alleged in a complaint and whose authenticity no party questions, but which 25 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) Page 3 of 10 1 motion to dismiss” without converting the motion to dismiss into a motion for summary 2 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 3 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 4 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside 5 of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See 6 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). 7 If the court grants a motion to dismiss, it must then decide whether to grant leave to 8 amend. The court should “freely give” leave to amend when there is no “undue delay, bad 9 faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by 10 virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman 11 v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear 12 that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow 13 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 14 III. ANALYSIS 15 A. 16 Plaintiff captioned his First Amended Complaint with the following causes of action: Defendants’ Motion to Dismiss 17 “Damages for Conspiracy, Discrimination, Retaliation, Abuse of Authority, Intimidation, 18 Negligent, Mail Fraud, Negligent Intentional Infliction of Emotional Distress, Intentional 19 Negligent of Breach of Contract.” (First Am. Compl. 1:6-10, ECF No. 25.) However, Plaintiff 20 again failed to match these causes of action to the facts alleged in the body of his Complaint. 21 (See Order, Sept. 15, 2011, ECF No. 24.) Despite this failure, Defendants have not moved to 22 dismiss Plaintiff’s Seventh through Ninth Causes of Action for failure to state a claim upon 23 which relief can be granted, and solely move to dismiss the individual Defendants and Plaintiff’s 24 First through Sixth, and Tenth Causes of Action against all Defendants. For the reasons 25 discussed below, the First through Sixth Causes of Action, and the Tenth Cause of Action will Page 4 of 10 1 2 3 be dismissed against all Defendants. 1. Individual Defendants Defendants in their individual capacity cannot be held liable for damages under Title VII. 4 Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993). Accordingly, dismissal of all 5 individual Defendants for Plaintiff’s Title VII claims is appropriate. 6 7 a. First Cause of Action Plaintiff’s First Cause of Action does not appear to allege any legal basis for the claim. 8 Instead, Plaintiff narrates events in the course of his employment and conclusory statements that 9 Lead Security Officer for Wackenhut Security, Richard Tritley, was Caucasian while Plaintiff is 10 African American, and that Tritley impugned Plaintiff’s skill, competency and maturity when he 11 “unnecessarily told plaintiff to repeat all of his instructions that he had just said to plaintiff” and 12 “did not ask that request from any of the other officers present that day.” (FAC, 3:16-20.) 13 Plaintiff argues that Tritley thereby “produced liability on himself and others because of the 14 unlawful act, and he, and others are directly responsible for the damages.” (FAC, 3:19-23.) The 15 Court’s liberal construction of this cause of action leads to the conclusion that Plaintiff alleges 16 violations of Title VII against Tritley. Accordingly, this cause of action will be dismissed. 17 18 b. Second Cause of Action Plaintiff’s Second Cause of Action specifically invokes Title VII as a basis for the claim, 19 and as with the First Cause of Action, only alleges violations on the part of Tritley and 20 supervisor James Tadlock. Accordingly, this cause of action will be dismissed. 21 22 c. Third Cause of Action Plaintiff’s Third Cause of Action invokes discrimination as a basis for the claim, and 23 alleges that Tritley discriminated against African American employee and Security Officer 24 Thereesa Richardson, which “was very painful for plaintiff to see and hear” and therefore “had a 25 discriminative impact on plaintiff.” (FAC, 5:26-27.) To the extent that Plaintiff is alleging a Page 5 of 10 1 violation of Title VII against himself, perpetrated by Tritley, this claim also fails, and the cause 2 of action will be dismissed. 3 4 d. Fourth Cause of Action Plaintiff’s Fourth Cause of Action alleges that supervisor James Tadlock was negligent 5 for failing or refusing “to hold Tritley responsible for maintaining a safe work environment free 6 from harassment and/or discrimination.” (FAC, 6:23-25.) Plaintiff appears to be alleging a 7 claim for hostile work environment under Title VII, and possibly conspiracy, negligent 8 supervision or intentional infliction of emotional distress. Because these allegations also appear 9 to be against Tadlock in his individual capacity, this cause of action will be dismissed to the 10 extent that it alleges Title VII violations. To the extent that Plaintiff is alleging a claim under 11 any other legal theory, the Court finds that Plaintiff has failed to give Defendants fair notice of a 12 legally cognizable claim and therefore has failed to sufficiently state a claim under Federal Rule 13 of Civil Procedure 12(b)(6). Accordingly, this cause of action will be dismissed. 14 15 e. Fifth Cause of Action Plaintiff’s Fifth Cause of Action alleges discrimination on the part of Tadlock, supervisor 16 Jane Goodrow, and possibly Patricia Maxwell in the context of his dispute over compensation. 17 Because the Court’s liberal construction of this cause of action leads to the conclusion that 18 Plaintiff is alleging violations of Title VII against these Defendants in their individual capacity, 19 this cause of action will also be dismissed. 20 21 2. Las Vegas Valley Water District a. First through Sixth Causes of Action 22 In his Sixth Cause of Action Plaintiff alleges that Las Vegas Valley Water District, in 23 addition to the dismissed Defendants, was “negligent and/or discriminative and abused their 24 authority to intentionally intimidate, infliction of emotional distress and conspired with each 25 other to denied plaintiff his rights.” (FAC, 8:16-21.) He also alleges that “defendants breached Page 6 of 10 1 the contract, which said the Las Vegas Valley Water District is an Equal Opportunity Employer, 2 because all of them knew or should have known what was going on and what the law said about 3 all of these unlawful action(s).” As discussed above, all causes of action alleged by Plaintiff 4 against individual defendants for Title VII violations will be dismissed. 5 Also, as Defendants point out in their Motion to Dismiss, a claimant must file an EEOC 6 Charge within three hundred days of a discriminatory act at the latest, if filing with a state 7 agency. 42 U.S.C. § 2000e-5(e)(1). This time period is subject to equitable doctrines such as 8 tolling or estoppel, but is to be applied sparingly. Nat’l R.R. Passenger Corp. v. Morgan, 536 9 U.S. 101, 113 (2002). The Court does not find that Plaintiff’s allegations justify the application 10 of the equitable doctrines. Plaintiff attached his EEOC Charge dated April 9, 2010 to his 11 original Complaint (ECF No. 1) and appears to have filled out his Intake Form on February 5, 12 2010 (Ex. L to Pl.’s Mot., ECF No. 7). Since the acts complained of by Plaintiff took place 13 between January and September of 2008, and any act occurring earlier than April 11, 2009, three 14 hundred days prior to February 5, 2010, is barred, these causes of action must fail. Accordingly, 15 Plaintiff’s First through Sixth Causes of Action will be dismissed against all Defendants. 16 17 b. Tenth Cause of Action Plaintiff’s Tenth Cause of Action alleges that “Patricia Maxwell was discriminative and 18 negligent concerning a missing restricted delivery receipt” when “she intentionally refused to 19 mail the receipt back to plaintiff for which he paid for.” (FAC, 14:8-11.) To the extent that 20 Plaintiff is alleging violation of Title VII against this defendant in her individual capacity, this 21 cause of action will be dismissed. Furthermore, to the extent that this cause of action is alleged 22 against LVVWD, it will be dismissed for failure to state a claim pursuant to Federal Rule of 23 Civil Procedure 12(b)(6). 24 25 c. Seventh Cause of Action In his Seventh Cause of Action Plaintiff alleges violations based upon the actions of Page 7 of 10 1 “Richard Fox, security officer and part-time lead on the graveyard shift.” (FAC, 10:7-8.) 2 Plaintiff alleges that “Fox discriminated against plaintiff and intentionally inflicted emotional 3 distress on plaintiff by using the ‘N-word’ on multiple occasions to indicate his superiority over 4 my race, african american [sic].” (Id. at 10:12-15.) Plaintiff refers to events on November 12-13, 5 2009, in which Fox was allegedly “disrespectful to plaintiff by talking to him in a lower fashion 6 and creating mentally taxing situations that undermine plaintiff’s authority to perform as a lead 7 and security officer,” and “Fox intentionally was insubordinate in his role as a patrol officer.” (Id. 8 at 10:9-12, 17-18.) Liberally construing Plaintiff’s allegations, the Court finds that Plaintiff is 9 alleging violations of Title VII against Fox in his individual capacity. Accordingly, this cause of 10 11 12 action will be dismissed as to individual Defendants and will survive as to LVVWD. d. Eighth Cause of Action In his Eighth Cause of Action Plaintiff alleges that “James Tadlock retaliated against 13 plaintiff because he filed discrimination charges against him.” (First Am. Compl., 11:12-14.) 14 Plaintiff also alleges that “Hyman Walker, Robert Hulshouser and Alan Schmidt were 15 ‘negligent’ in that they refused to act correctly to the many unlawful acts within the security 16 department.” (Id. at 12:8-10.) Liberally construing Plaintiff’s allegations, the Court finds that 17 Plaintiff is alleging violations of Title VII against Schmidt, Hulshouser, Tadlock and Walker in 18 their individual capacity. Accordingly, this cause of action will be dismissed as to individual 19 Defendants and will survive as to LVVWD. 20 e. Ninth Cause of Action 21 In his Ninth Cause of Action Plaintiff again alleges a “reprisal or retaliative attack aimed 22 at plaintiff” by James Tadlock on February 23, 2010. (First Am. Compl., 13:2-3.) Plaintiff also 23 alleges that he “had to undergo an investigation and was administered two (2) field drug tests” 24 after “security officer Charles Siedl had an accident” while driving a LVVWD vehicle on 25 January 6, 2010. (Id. at 13:13-14.) Plaintiff argues that “this was a discriminative act” because Page 8 of 10 1 Siedl was not investigated or required to take drug tests after the accident. (Id. at 12:14.) 2 Plaintiff alleges that “Patricia Maxwell intentionally gave plaintiff a false accident report to 3 mislead plaintiff.” (Id. at 13:20-21.) Liberally construing Plaintiff’s allegations, the Court finds 4 that Plaintiff is alleging violations of Title VII against Tadlock and Maxwell in their individual 5 capacity. Accordingly, this cause of action will be dismissed as to individual Defendants and 6 will survive as to LVVWD. 7 B. 8 As discussed above, Plaintiff’s motions fail to comply with the applicable legal 9 10 Plaintiff’s Motions requirements and will be denied. A party may move for judgment on the pleadings after the pleadings are closed. Fed. R. 11 Civ. P. 12(c). Here, Defendants have not filed an Answer, and dispositive motions are still 12 pending. Therefore, to the extent that Plaintiff sought to make such a motion, it will be denied 13 as untimely. 14 A court shall grant summary judgment if the party making such a motion shows that there 15 is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of 16 law. Fed. R. Civ. P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must 17 support the assertion by citing to particular parts of materials in the record. Fed. R. Civ. P. 18 56(c)(1). Although a court may consider other materials in the record, only the cited materials 19 need be considered. Fed. R. Civ. P. 56(c)(3). Finally, a party’s failure to file points and 20 authorities in support of the motion shall constitute a consent to the denial of the motion. D. 21 Nev. R. 7-2(d). Here, Plaintiff has failed to support his assertions by filing points and 22 authorities or by citing to any of the materials in the record, much less particular parts. The 23 court declines to search through and consider the entire record in an effort to find support for 24 Plaintiff’s motions. Accordingly, the motions will be denied. 25 Finally, Plaintiff’s Motion for Communication with the Court (ECF No. 46) is Page 9 of 10 1 inappropriate under District of Nevada Local Rule of Practice 7-6(b). This rule does not provide 2 for any filing in the form of a motion, and does not provide for communication with the Court. 3 Accordingly, Plaintiff’s motion will be denied. 4 IV. 5 CONCLUSION IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Plaintiff’s First 6 Amended Complaint (ECF No. 28) is GRANTED. All individual Defendants are dismissed, 7 and Plaintiff’s First through Sixth, and Tenth Causes of Action are DISMISSED. Defendant 8 Las Vegas Valley Water District remains, as well as Plaintiff’s Seventh, Eighth and Ninth 9 Causes of Action. 10 IT IS FURTHER ORDERED that Plaintiff’s Motion for Partial Summary Judgment 11 (ECF No. 32) and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 48) are DENIED. 12 IT IS FURTHER ORDERED that Plaintiff’s Motion for Communication with the Court 13 14 (ECF No. 46) is DENIED. DATED this 5th day of July, 2012. 15 16 17 18 ______________________ _ _ ________________________________ Gloria M. Navarro a M. Navarro v United States District Judge United States t Judg 19 20 21 22 23 24 25 Page 10 of 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
