Williams et al v. Clark County Public Administrator et al, No. 2:2009cv00810 - Document 123 (D. Nev. 2010)

Court Description: ORDER Granting 93 , 94 , 97 , 99 , and 100 Motions to Dismiss. Signed by Judge Robert C. Jones on 10/26/10. (Copies have been distributed pursuant to the NEF - ASB)
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Williams et al v. Clark County Public Administrator et al Doc. 123 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 TERRY WILLIAMS, 9 10 11 12 13 ) ) Plaintiff, ) ) vs. ) ) CLARK COUNTY PUBLIC ADMINISTRATOR ) et al., ) ) Defendants. ) ) 2:09-cv-00810-RCJ-LRL ORDER 14 This case arises out of probate proceedings and the settlement of a wrongful death claim. 15 Pending before the Court are five motions to dismiss. Plaintiffs have filed no timely responses, the 16 latest of which was due on June 10, 2010, but on October 6, 2010 Plaintiffs filed a “Supplement to 17 Response” to the motions.1 For the reasons given herein, the Court grants the motions to dismiss. 18 I. FACTS AND PROCEDURAL HISTORY 19 On November 2, 2002, an employee of the Silver Ridge Health Care Center in Las Vegas, 20 Nevada gave decedent Charles L. Williams, Sr. (“Williams”) breakfast orally despite the fact that 21 Williams was being fed through a feeding tube in his stomach. (Compl. ¶¶ 9–11, May 6, 2009, ECF 22 No. 50-2). The accidental feeding caused Williams’ death. (Id. ¶ 11). Plaintiffs Terry Williams 23 (“Plaintiff”), as personal representative of Williams’ estate, and the Williams’ estate (“the Estate”) 24 25 1 This constitutes consent to granting the motions. L.R. Civ. Prac. 7-2(d). Dockets.Justia.com 1 submitted a will to probate in Maryland. (Id. ¶ 21). Defendant Jared Shafer, a former Clark County 2 Public Administrator, allegedly petitioned a Nevada state court for a letter of Co-special 3 Administration by presenting an “out-of-state, estranged” relative and allegedly concealed the 4 existence of the other relatives pursuing probate in Maryland. (Id. ¶ 25).2 When Plaintiff discovered 5 that Shafer had done this, Shafer contested the will in the Maryland court, forced Plaintiff’s joinder 6 in the Nevada state court, and challenged the rulings of the Maryland court in the Nevada court, 7 allegedly in violation of the Full Faith and Credit Clause. (Id. ¶¶ 27–31). 8 Plaintiffs sued Defendants pro se in the U.S. District Court for the Central District of 9 California on sixteen causes of action: (1)–(2) Declaratory Relief of Violations of the Full Faith and 10 Credit Statute; (3) Violations of 42 U.S.C. § 1981; (4) Violations of 42 U.S.C. § 1983 (equal 11 protection and due process); (5) Violations of 42 U.S.C. § 1985; (6) Intentional Misrepresentation; 12 (7) Declaratory Judgment; (8) Unjust Enrichment; (9) Breach of Contract; (10) Breach of Fiduciary 13 Duty; (11) Accounting; (12) Malpractice; (13) Tortious Interference; (14) Civil Conspiracy; (15) 14 Intentional Infliction of Emotional Distress (“IIED”); and (16) RICO, 18 U.S.C. § 1962. That court 15 transferred venue to this District due to lack of personal jurisdiction over Defendants in California. 16 (See Order, Apr. 28, 2009, ECF No. 50-50). 17 Five groups of Defendants have separately moved to dismiss: (1) Gregory Dallas Horton 18 (ECF No. 93); (2) Stewart Bell, Nevada Commission on Ethics, State of Nevada, and Valorie Stutz- 19 Vega (ECF No. 94); (3) Las Vegas Metropolitan Police Department (“LVMPD”) (ECF No. 97); (4) 20 Don Ashworth, Clark County Coroner’s Office, Clark County Public Administrator, Clark County, 21 and Shafer (ECF No. 99); and (5) Terry Coffing, Mark Morrow, and Elyse M. Tyrell (ECF No. 100). 22 /// 23 24 25 2 It is difficult to tell from the Complaint whether Plaintiffs mean to allege what Defendants actually did or only what they planned to do but did not actually do, because the allegations are largely written in the subjunctive mode. Page 2 of 11 1 II. RULE 12(b)(6) STANDARDS 2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim 3 showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the 4 . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal 5 Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a 6 claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the 7 complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 8 When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is 9 appropriate only when the complaint does not give the defendant fair notice of a legally cognizable 10 claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 11 In considering whether the complaint is sufficient to state a claim, the court will take all material 12 allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. 13 v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true 14 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. 15 See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation 16 of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing 17 that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing 18 Twombly v. Bell Atl. Corp., 550 U.S. 554, 555 (2007)). 19 “Generally, a district court may not consider any material beyond the pleadings in ruling on 20 a Rule 12(b)(6) motion. . . . However, material which is properly submitted as part of the complaint 21 may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 22 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, “documents whose contents are 23 alleged in a complaint and whose authenticity no party questions, but which are not physically 24 attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without 25 converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d Page 3 of 11 1 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial 2 notice of “matters of public record.” Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th 3 Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion 4 to dismiss is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. 5 Agency, 261 F.3d 912, 925 (9th Cir. 2001). 6 III. ANALYSIS 7 A. 8 Defendant attorney Horton explains the procedural history more completely than Plaintiffs 9 do. At a settlement conference on or about July 21, 2003, Plaintiff and her two siblings, Ann and 10 Charles Jr., who were all represented by counsel, agreed that they would separate their father’s estate 11 equally and that attorneys Gilkey, who represented Plaintiff and Ann, and attorney Coffing, who 12 represented Charles Jr., would represent the Estate in its wrongful death action. (Horton Mot. 13 Dismiss. 3:19–26, May 21, 2010, ECF No. 93). Horton replaced Coffing because of a conflict of 14 interest. (Id. 3:27–28). A stipulated judgment bearing the signature of Plaintiff and her siblings 15 provided inter alia: (1) that the siblings would dismiss the Maryland probate action; (2) that the 16 siblings would have to unanimously consent to settlement of the Estate or to terminate Horton and 17 Gilkey as the Estate’s attorneys; (3) that each party was entitled to sue for wrongful death separately, 18 with Horton representing Charles, Jr. and Gilkey representing Plaintiff and Ann; (4) that the Estate 19 would be equally divided between the siblings; and (5) that the siblings would have to unanimously 20 consent to any litigation regarding the Estate. (Stip. J., Nov. 2, 2004, ECF No. 93-3). The siblings, 21 including Plaintiff, signed an additional confession of judgment. (See Conf. J., Oct. 27, 2004, ECF 22 No. 93-4). Horton 23 They then proceeded with the wrongful death claim against AHP of Las Vegas (“AHP”), the 24 assisted living center where Williams had resided. AHP settled with the siblings for $1 million. After 25 existing attorney’s liens against the Estate were satisfied, the siblings split $659, 867.46 equally, Page 4 of 11 1 resulting in awards of $219,955.82 apiece before attorney’s fees and costs. Plaintiff and her siblings 2 signed the settlement agreement (“SA”). (See SA, Nov. 16, 2006, ECF No. 93-5). 3 Horton notes that Plaintiff cannot represent the Estate in any litigation under the Stipulated 4 Judgment, because at least Charles, Jr. has not consented to any such litigation. (See Charles 5 Williams, Jr. Aff., May 12, 2010, ECF No. 93-6). At most, Plaintiff can represent himself alone. 6 Horton appears to be correct. Plaintiff also brings her claims in her individual capacity, however. 7 Next, Horton argues the defense of accord and satisfaction, that Plaintiff has not pled her 8 claims with the required particularity under Rule 9(b), and that as to the non-fraud-related contractual 9 and malpractice claims, Horton represented only Charles, Jr., and never Plaintiff. Defendant appears 10 to be correct on all counts. 11 Next, Horton notes that Plaintiff alleges the SA is void but has not paid back or claimed she 12 is ready, willing, and able to pay back her proceeds from the SA, and she cannot have rescission only 13 of her adversary’s benefits under a contract and not of her own benefits. See Allenbach v. Ridenhour, 14 279 P. 32, 37 (Nev. 1929). 15 Finally, Horton argues that Plaintiff has failed to join indispensable parties under Rule 19, i.e., 16 the attorneys who represented him in obtaining the settlement: Christensen Law Offices and Robert 17 Cossack. The last two arguments are not necessary to examine. The Court will dismiss as against 18 Horton based on failure to plead fraud with particularity against him, because Horton is not a state 19 actor, and because Plaintiff pleads no contractual relationship with Horton. 20 B. 21 Stewart Bell, Nevada Commission on Ethics, State of Nevada, and Valorie Stutz-Vega move 22 to dismiss under Rule 12(b)(6). First, as Defendants note, Judges Bell and Stutz-Vega are absolutely 23 immune for their judicial acts. Judges and courts have absolute civil immunity for their judicial acts, 24 including as against claims under 42 U.S.C. § 1983 and regardless of any erroneous application of 25 the law, unless there is a “clear absence” of subject-matter jurisdiction. Stump v. Sparkman, 435 U.S. The Bell Defendants Page 5 of 11 1 349, 356–58 (1978) (citing Bradley v. Fisher, 80 U.S. 335 (1871)). Nevada’s district courts have 2 general jurisdiction, which naturally includes probate jurisdiction, unless probate jurisdiction is 3 specifically granted to the justice courts by statute. See Nev. Const. art. VI, §§ 6(1), 8. The Nevada 4 Legislature has not granted Nevada’s justice courts probate jurisdiction, see Nev. Rev. Stat. § 4.370, 5 and it therefore remains with the district courts. Even assuming the existence of a prior, valid, final 6 judgment in probate from Maryland—of which there is no evidence and which appears extremely 7 unlikely based on the stipulated judgment requiring the siblings to terminate the Maryland probate 8 action—the Full Faith and Credit Clause does not deprive a later court of jurisdiction, but simply 9 requires that the later court honor the judgments of the first court. Judges Bell and Stutz-Vega had 10 jurisdiction. The Court therefore dismisses all claims as against them. 11 Next, Defendants note that the State of Nevada and the Nevada Commission on Ethics (“the 12 State Defendants”) are immune under the Eleventh Amendment. The Eleventh Amendment prohibits 13 suits against states in federal court without their consent. In a parallel but independent analysis, 42 14 U.S.C. § 1983 only creates jurisdiction for suits against “persons.” Neither a state nor its employees 15 acting in their official capacities are “person[s]” who can be sued under § 1983, Will v. Mich. Dep’t 16 of State Police, 491 U.S. 58, 66 (1989), but state employees may be sued in their individual capacities 17 as “persons” under § 1983, Hafer v. Melo, 502 U.S. 21, 27 (1991). State employees sued in their 18 individual capacities for injunctive relief or for damages to be paid out of their private resources are 19 not protected by a state’s Eleventh Amendment immunity. Edelman v. Jordan, 415 U.S. 651, 664–65 20 (1974); Ex parte Young, 209 U.S. 123, 159–60 (1908). Additionally, individuals in their private 21 capacities (but not municipalities or individuals in their official capacities) enjoy qualified immunity 22 against claims of constitutional violations where the right alleged to have been violated was not 23 clearly established at the time of the alleged violation. Hallstrom v. City of Garden City, 991 F.2d 24 1473, 1482 (9th Cir. 1993) (citing Owen v. City of Independence, 445 U.S. 662, 638 (1980)). Under 25 Saucier v. Katz, a district court uses a two-step procedure to determine whether an official is entitled Page 6 of 11 1 to qualified immunity: (1) the court asks whether there has been a constitutional violation; and (2) 2 if so, the court asks whether the state of the law at the time of the alleged violation was clear such 3 that a reasonable person in the defendant’s position should have known his actions violated the 4 plaintiff’s rights. 533 U.S. 194, 201 (2001). Under Pearson v. Callahan, it is within the sound 5 discretion of a district court which Saucier step to employ first; the court may examine the second 6 step first in order to avoid constitutional holdings where a defendant will be free from liability due 7 to qualified immunity in any case. 129 S. Ct. 808, 818 (2009). 8 Although Nevada has waived common-law sovereign immunity for itself and its political 9 subdivisions in its own courts, it has not waived its Eleventh Amendment protection from suit in 10 federal court. See Nev. Rev. Stat. § 41.031. Waiver of immunity must be unequivocal, and Nevada 11 has explicitly declined to waive its Eleventh Amendment immunity. § 41.031(3). The Ninth Circuit 12 has explicitly held that under this statute Nevada state entities retain immunity from suit in federal 13 court under the Eleventh Amendment. Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999) 14 (Nevada Gaming Control Board); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 678 (9th Cir. 1991) 15 (State Industrial Insurance System). The Nevada Supreme Court has also noted that state entities 16 in Nevada are immune from suit in federal court under the Eleventh Amendment and that state entities 17 cannot be sued as a “person” under § 1983 even in state court, where immunity is waived. Cuzze v. 18 Univ. & Cmty. Coll. Sys. of Nev., 172 P.3d 131, 136 & n.22 (Nev. 2007) (citing Simonian v. Univ. 19 & Cmty. Coll. Sys. of Nev., 128 P.3d 1057, 1061 (Nev. 2006)). 20 The State of Nevada itself therefore clearly has sovereign immunity. The Nevada Commission 21 on Ethics has sovereign immunity if it is an agency of the state. See NRDC v. Cal. Dep’t of Trans., 22 96 F.3d 420, 421 (9th Cir. 1996) (citing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 23 U.S. 139, 142–46 (1993)). It is. See Nev. Rev. Stat. § 281A.200(1) (creating the Commission). The 24 Court therefore dismisses as against the State Defendants. 25 Page 7 of 11 1 C. 2 Although police departments are not generally “persons” under § 1983, United States v. 3 Kama, 394 F.3d 1236, 1239–40 (9th Cir. 2005), an inter-governmental agency is a “person” under 4 § 1983 if the parties that created it “intended to create a separate legal entity subject to suit,” Hervey 5 v. Estes, 65 F.3d 784, 792 (9th Cir. 1995). LVMPD is therefore itself a “municipality” subject to suit 6 under § 1983 if it was intended to be a separate legal entity from the City of Las Vegas and Clark 7 County, which created LVMPD as a common police force. The statute providing for the merger of 8 city and county law enforcement agencies makes clear that the Nevada Legislature did not intend for 9 such mergers to consist of mere cooperation agreements, but intended to create legal entities 10 independent from the respective cities and counties. See Nev. Rev. Stat. § 280.120 (1973) (providing 11 for complete supersession of former law enforcement agencies with the newly created agencies). 12 Nevada’s merger statute provides a means of merging city and county law enforcement agencies 13 analogous to the merger of two corporations. See §§ 280.105–280.123. The identities of the former 14 agencies are completely subsumed by the identity of the new agency. § 280.120. LVMPD may 15 therefore be independently sued under § 1983. See Estes, 65 F.3d at 792. LVMPD 16 In order to hold a municipality liable under Monell for declaratory, injunctive, or monetary 17 relief, the allegedly unconstitutional actions must have been pursuant to an official municipal policy, 18 ordinance, regulation, or officially adopted decision. Id. at 690–91. 19 expounded: The Ninth Circuit has 23 In a Monell claim, there are three ways to show a policy or custom of a municipality: (1) by showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (3) by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. 24 Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008) (citations and internal 25 quotation marks omitted). Prospective injunctive relief may be had against a municipality’s 20 21 22 Page 8 of 11 1 enforcement of an allegedly unconstitutional state policy even if the municipality itself has only 2 adopted the policy through enforcement. Chaloux v. Killeen, 866 F.2d 247, 250–51 (9th Cir. 1989). 3 In any case, “[l]iability under section 1983 arises only upon a showing of personal participation by 4 the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A supervisor is only liable for 5 constitutional violations of his subordinates if the supervisor participated in or directed the violations, 6 or knew of the violations and failed to act to prevent them. There is no respondeat superior liability 7 under section 1983.” Id. 8 Here, Plaintiff has not only failed to plead any custom or policy as to any particular violation 9 of § 1983, she has failed to plead any kind of wrongdoing at all by LVMPD. The basis of her having 10 named LVMPD as a Defendant is a bit of a mystery. She claims only that LVMPD responded to a 11 call concerning Williams’ condition, that LVMPD did not investigate Williams’ homicide, and that 12 “victims” are prevented from filing police reports with LVMPD concerning allegedly fraudulent 13 documents filed in probate court. None of this states a cause of action against LVMPD. The Court 14 dismisses as against LVMPD for this reason. LVMPD also argues that the statutes of limitation on 15 the IIED, civil rights, RICO, and conspiracy claims ran as against LVMPD before Plaintiffs filed the 16 Complaint. 17 D. 18 As Defendants note, Don Ashworth was a probate commissioner who has absolute judicial 19 immunity for his official acts in that capacity, under which he is an officer of the district court. Next, 20 Defendants note that there is no private right of action for enforcement of the Full Faith and Credit 21 Clause in federal court, either directly or under the implementing statute, 28 U.S.C. § 1738. See 22 Minnesota v. N. Sec. Co., 194 U.S. 48, 72 (1904); Thompson v. Thompson, 798 F.2d 1547, 1555–56 23 (9th Cir. 1986). The Clark County Defendants 24 Next, Defendants note that there is no allegation of a policy or custom of violating civil rights 25 by the Clark County Defendants, and in their individual capacities the Clark County Defendants have Page 9 of 11 1 discretionary immunity. The remaining individual Clark County Defendant is Shafer, a former special 2 administrator of the Estate. The problem with the allegations against Shafer, as with the allegations 3 generally, is that he is not alleged to engaged in any conduct that can properly be characterized as 4 wrongdoing. He is alleged only to have administered the estate as his employment by the County 5 required, but Plaintiff characterizes this in conclusory fashion as some kind of fraudulent, criminal 6 scheme. Allegations of fraud, bribery, “orchestration of a phony probate,” extortion, and “terrorism,” 7 are scattered throughout the Complaint, but notably absent are any facts pled that would make such 8 conclusions plausible. In most cases, the elements of the respective claims aren’t even pled in 9 conclusory, bare-bones fashion, much less so as to survive Iqbal and Twombly. No two predicate 10 crimes are pled under the RICO claim, for example, and no physical manifestation of emotional 11 distress is alleged. 12 Moreover, the entire Complaint arises out of causes of action settled through the signed 13 settlement agreement and the stipulated judgment. The Court grants this motion to dismiss. If 14 Plaintiff wishes to be relieved from the settlement and/or the judgment—which is the gravamen of 15 the Complaint—she must move for relief in the court that entered them. 16 E. 17 The Coffing Defendants note that they are charged with sixteen claims but are mentioned only 18 four times in the Complaint: the factual allegation that they were legal strategists to Defendant Shafer, 19 his family, and entities he controlled, and the legal conclusions that they orchestrated a fraudulent 20 scheme, are “persons” under 18 U.S.C. § 1961, and an unclear, incomplete allegation (the last page 21 of the Complaint is missing in the record). This is not enough to state causes of action against these 22 Defendants, and the Court grants their motion to dismiss. The Coffing Defendants 23 As a whole, the Complaint is vague and conclusory. Also, as several Defendants note, the 24 events giving rise to the Complaint occurred from 2002 to late 2006, and the Complaint was filed in 25 late 2008, such that the statutes of limitations on many causes of action have run. The stipulated Page 10 of 11 1 judgment in probate court appears to have occurred in 2004, and the settlement on the wrongful 2 death claim occurred in late 2006. Nevada has a two-year statute of limitations on IIED and civil 3 rights violations. Fraud-related claims run in three years. The gravamen of the complaint concerns 4 Plaintiff’s fight against the jurisdiction of the Nevada district court in probate. The Complaint was 5 not brought until four to five years after the “principal actor’s wrongful conduct began,” according 6 to the Complaint itself. The stipulated judgment was entered on October 27, 2004, almost four years 7 before the Complaint was filed, barring fraud, civil rights, and IIED claims as to the conduct 8 underlying the probate matters. Perhaps Plaintiff means to allege causes of action based only on the 9 2006 settlement agreement, but this is not clear at all from the Complaint. 10 In summary, the first two causes of action for declaratory relief of violations of the Full Faith 11 and Credit Statute are implausible even under the Conley standard. See N. Sec. Co., 194 U.S. at 72; 12 Thompson, 798 F.2d at 1555–56. The statutes of limitations on the third through seventh, fourteenth, 13 and fifteenth causes of action have run. Insufficient facts are pled as to the remaining causes of 14 action, and it does not appear this can be cured by amendment. Additionally, the state and judicial 15 Defendants are absolutely immune on all causes of action. There appears to be a judgment and a 16 settlement agreement governing these matters. If Plaintiff is now unsatisfied with the stipulated 17 judgment regarding the Estate and the SA she signed, she must file for relief from judgment in the 18 court that entered them. 19 20 21 CONCLUSION IT IS HEREBY ORDERED that the Motions to Dismiss (ECF Nos. 93, 94, 97, 99, 100) are GRANTED. 22 IT IS SO ORDERED. 23 Dated this 26th day of October, 2010. 24 25 _____________________________________ ROBERT C. JONES United States District Judge Page 11 of 11