Downing v. Khan ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 JOSEPH DOWNING, Case No. 2:23-cv-00082-ART-NJK 6 Plaintiff, ORDER 7 v. 8 DR. KHAN, et al., 9 Defendants. 10 11 Plaintiff Joseph Downing, an inmate at High Desert State Prison (HDSP), 12 brings this civil-rights action under 42 U.S.C. § 1983 in connection with his 13 treatment as a pretrial detainee at Clark County Detention Center (CCDC). The 14 Court allowed Plaintiff to proceed with his claims for Fourteenth Amendment due 15 process inadequate medical care violations against various defendants for not 16 receiving treatment for sleep apnea and knee issues, Fourteenth Amendment 17 due process inadequate mental health care violations against Defendants Dr. 18 Khan and Maggie Sandquist (“Sandquist”) from “psych services”, and Fourteenth 19 Amendment due process inadequate mental health care violations against 20 Vincent Varias (“Varias”), another psych services employee, and Sgt. Floyd. 21 Before the Court are 1) Plaintiff’s Emergency Motion for a Temporary 22 Restraining Order (TRO) (ECF No. 25), Plaintiff’s Motion for Relief and Affidavit 23 (ECF No. 26), Defendants’ Motion to Dismiss (ECF No. 32), Plaintiff’s Motions to 24 Amend his Motion for a TRO (ECF Nos. 34, 36, 53), Plaintiff’s Motion to Extend 25 Time to Respond to Defendants’ Motion to Dismiss (ECF No. 37), Plaintiff’s 26 Motion for the Court to Reconsider its Order Granting a Stay of Discovery (ECF 27 No. 42), and Plaintiff’s Motion for Default Judgment (ECF No. 55). 28 /// 1 I. BACKGROUND 2 Plaintiff brings three claims for alleged constitutional violations that occurred 3 while he was at CCDC. In his first claim, Plaintiff alleges that CCDC officials 4 violated his Fourteenth Amendment right to adequate medical care by not 5 providing treatment for his sleep apnea for thirty months nor for the gout in his 6 left knee. (ECF No. 6 at 3, 7-8.) 7 In his second claim, Plaintiff alleges Plaintiff claims that Dr. Khan and 8 Sandquist, an employee at CCDC’s psych services, violated his Fourteenth 9 Amendment right to adequate mental health care. He states that Sandquist 10 would repeatedly remove him from the psych services unit despite needing 11 programming and treatment only available there. (Id. at 5, 9-10.) Plaintiff states 12 that Dr. Khan allowed these removals to occur and did nothing to stop 13 Sandquist, and he would only return Plaintiff to psych services after the removal 14 already occurred. (Id.) Plaintiff alleges that Sandquist and Dr. Khan were playing 15 a game and were fully aware of how the repeated transfers would impact Plaintiff. 16 (Id. at 10.) Plaintiff became suicidal and believed that both Sandquist and Dr. 17 Khan intended for Plaintiff to kill himself. (Id.) 18 In his final claim, Plaintiff alleges that Varias, a psych services employee, 19 ordered staff to move Plaintiff to general population. (Id. at 5, 11-12). Plaintiff 20 tried informing Varias that he had just recently been moved to the psych services 21 unit and requested Varias review his case file. (Id.) Instead of doing so, Varias 22 ordered Plaintiff moved to disciplinary housing for refusing housing and said 23 Plaintiff was not suicidal. (Id. at 5.) Plaintiff was taken to disciplinary housing 24 and immediately informed Sergeant Floyd that he was suicidal and would kill 25 himself if placed in the hole. (Id.) Sergeant Floyd called psych services, 26 handcuffed Plaintiff, and placed him in the visit video cages. (Id.) Varias arrived 27 and Sergeant Floyd unholstered his taser and told Varias to tase Plaintiff. (Id.) 28 Both Varias and Sergeant Floyd bullied and threatened Plaintiff, including saying 1 “We should take him out back and beat him like the old days” and saying Plaintiff 2 should just kill himself so they would have less work. (Id. at 11.) Instead of 3 helping Plaintiff, these Defendants exacerbated Plaintiff’s suicidal feelings. (Id.) 4 After meeting with Plaintiff again approximately twenty minutes after his original 5 transfer order, Varias transferred Plaintiff back to the psych unit. (Id.) Plaintiff 6 notes that while he was being escorted back to the psych services unit, one of 7 the officers told Sergeant Floyd, “I know a blind spot in the cameras if you want 8 us to fuck him up, Sgt.” (Id.) 9 II. LEGAL STANDARD 10 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon 11 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded 12 complaint must provide “a short and plain statement of the claim showing that 13 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. 14 Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed 15 factual allegations, it demands more than “labels and conclusions” or a 16 “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 17 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). All factual allegations 18 set forth in the complaint are taken as true and construed in the light most 19 favorable to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 20 2001). Thus, to survive a motion to dismiss, a complaint must contain sufficient 21 factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 22 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Furthermore, filings by pro se 23 parties are to be liberally construed, especially in civil rights cases. Hebbe v. 24 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“[W]e continue to construe pro se filings 25 liberally when evaluating them under Iqbal.”). 26 /// 27 /// 28 /// 1 III. DISCUSSION 2 a. Motions for a Temporary Restraining Order 3 Restraining orders and preliminary injunctions are “extraordinary 4 remed[ies] never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 5 U.S. 7, 24 (2008). The legal standard for obtaining a temporary restraining 6 order and the legal standard for obtaining a preliminary injunction are 7 “substantially identical.” See Stuhlbarg Intern. Sales Co. v. John D. Bush and 8 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001), overruled on other grounds by 9 Winter, 555 U.S. at 20. The Supreme Court clarified the standard for these 10 forms of equitable relief in Winter, instructing that the plaintiff “must establish 11 that [he] is likely to succeed on the merits, that [he] is likely to suffer 12 irreparable harm in the absence of preliminary relief, that the balance of 13 equities tips in [his] favor, and that an injunction [or restraining order] is in the 14 public interest.” 555 U.S. at 20. The Ninth Circuit also recognizes an additional 15 standard: “if a plaintiff can only show that there are ‘serious questions going to 16 the merits’—a lesser showing than likelihood of success on the merits—then a 17 preliminary injunction may still issue if the ‘balance of hardships tips sharply 18 in the plaintiff’s favor, and the other two Winter factors are satisfied.’” Shell 19 Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting 20 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 21 A plaintiff who seeks a mandatory injunction—one that goes beyond simply 22 maintaining the status quo during litigation—bears a “doubly demanding” 23 burden: “[he] must establish that the law and facts clearly favor [his] position, 24 not simply that [he] is likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 25 740 (9th Cir. 2015) (en banc). The Ninth Circuit has cautioned that mandatory 26 injunctions are “particularly disfavored” and “should not issue in doubtful 27 cases.” Id. (internal quotations omitted). The Prison Litigation Reform Act 28 (“PLRA”) similarly instructs that any restraining order or preliminary injunction 1 granted with respect to prison conditions “must be narrowly drawn, extend no 2 further than necessary to correct the harm the court finds requires preliminary 3 relief, and be the least intrusive means necessary to correct that harm.” 18 4 U.S.C. § 3626(a)(2). 5 Finally, “there must be a relationship between the injury claimed in the 6 motion for injunctive relief and the conduct asserted in the underlying 7 complaint.” Pac. Radiation Oncology, LLC v. Queen’s Medical Ctr., 810 F.3d 631, 8 636 (9th Cir. 2015) (“Pacific Radiation”). “This requires a sufficient nexus 9 between the claims raised in a motion for injunctive relief and the claims in the 10 underlying complaint itself.” Id. The necessary connection is satisfied “where 11 the preliminary injunction would grant ‘relief of the same character as that 12 which may be granted finally.’” Id. (quoting De Beers Consol. Mines, 325 U.S. 13 212, 220 (1945)). “Absent that relationship or nexus, the district court lacks 14 authority to grant the relief requested.” Id. 15 Plaintiff filed a motion for a TRO and multiple motions to amend concerning 16 attempts to discipline Plaintiff for calling Ms. Porray, some of the Defendants’ 17 counsel, after she requested to talk to Plaintiff. (ECF No. 25 at 1-2.) Plaintiff 18 alleges that prison officials have retaliated against him following the call 19 because nobody informed Plaintiff that he was not supposed to call her for the 20 meeting. (Id. at 2-4.) In his subsequent motions to amend the Motion for a 21 TRO, Plaintiff alleges that Ms. Porray and HDSP officials “acted in concert to 22 retaliate against [him]” and that HDSP officials charged Plaintiff with 23 unauthorized use of equipment or mail for making the call (ECF No. 36 at 1-2, 24 6-7.) Plaintiff further notes that he was eventually found not guilty of the 25 charges. (ECF No. 53 at 1). 26 Plaintiff asks this Court to issue orders against individuals not named in the 27 present case for conduct unrelated to the underlying complaint. Such an order 28 is beyond the power of this Court. Pac. Radiation Oncology, LLC, 810 F.3d at 1 636 (“[T]here must be a relationship between the injury claimed in the motion 2 for injunctive relief and the conduct asserted in the underlying complaint.”). 3 Thus, the Court will grant Plaintiff’s motions to amend his motion for a TRO 4 (ECF Nos. 34, 36, 53) but deny Plaintiff’s motions for a TRO (ECF Nos. 25, 26).1 5 b. Motion for Extension of Time to Respond to Defendants’ Motion to 6 Dismiss 7 Finding good cause, the Court grants Plaintiff’s Motion for an Extension of 8 Time to Respond to Defendants’ Motion to Dismiss (ECF No. 37.) Because 9 Plaintiff already filed his Response (ECF No. 46), the Court will grant the 10 motion nunc pro tunc. 11 c. Motion to Reconsider Order Granting Stay of Discovery 12 Plaintiff next asks this Court to reconsider (ECF No. 42) Magistrate 13 Judge Koppe’s order granting a stay of discovery (ECF No. 38). Plaintiff argues 14 that he asked for extensions of time to file his opposition both to Defendants’ 15 Motion to Dismiss and Motion to Stay Discovery in ECF No. 37. (ECF No. 42 at 16 1.) While Plaintiff is correct, the Court notes that Judge Koppe’s order states 17 that “[i]f the resolution of the motion to dismiss does not result in the 18 termination of the case, a discovery plan must be filed within 14 days of the 19 order resolving the motion to dismiss.” (EC No. 38 at 1.) Because the order 20 requires discovery to resume following the Court’s resolution of the motion to 21 dismiss, which the court addresses in this order, the Court will deny this 22 motion as moot. 23 d. Motion for Default Judgment 24 Plaintiff also filed a motion for a default judgment (ECF No. 55) in which 25 he argues that Defendants failed to timely respond to his Motion to Amend his 26 TRO (ECF No. 53). However, the Court notes that Defendants did file a 27 28 1 Plaintiff’s Motion for Relief (ECF No. 26) is identical to his Motion for an 1 response by November 17, 2023, as required. (See ECF No. 54.) Thus, the 2 Court will deny Plaintiff’s Motion for a Default Judgment. 3 e. Motion to Dismiss 4 In their Motion to Dismiss (ECF No. 32), Defendants argue that 1) 42 USC § 5 1997e(e) requires that claims two and three in Downing’s FAC be dismissed 6 because they do not have compensable damages; 2) Dr. Khan should be 7 dismissed from the instant suit (claim two), because he had no personal 8 participation in the alleged violation(s) and § 1983 actions do not permit 9 vicarious/supervisory liability or respondeat superior; and 3) Vincent Varias 10 should be dismissed from the action because Downing failed to allege a 11 cognizable Fourteenth Amendment violation. The Court will deny the motion as 12 to the claims. 13 i. Compensable Damages 14 The Court is unpersuaded by Defendants’ argument that Downing’s second 15 and third claims lack compensable damages. Defendants claim that Downing’s 16 claims for inadequate mental health care treatment lack compensable damages 17 because the Prison Litigation Reform Act (PLRA) requires more than allegations 18 of emotional and mental injury but also physical injury that is not merely de 19 minimis. (ECF No. 32 at 7-10.) 20 The PLRA states that “[n]o Federal civil action may be brought by a prisoner 21 confined in a jail, prison, or other correctional facility, for mental or emotional 22 injury suffered while in custody without a prior showing of physical injury or the 23 commission of a sexual act (as defined in section 2246 of Title 18).” 42 USC § 24 1997e(e). However, while the PLRA requires more than de minimis physical 25 injury for many constitutional claims, see Oliver v. Keller, 289 F.3d 623, 627 (9th 26 Cir. 2002), it does not apply to all constitutional claims, such as Fourteenth 27 Amendment claims regarding inadequate mental health care. See id. at 630 (“To 28 the extent that appellant has actionable claims for compensatory, nominal or 1 punitive damages—premised on violations of his Fourteenth Amendment rights, 2 and not on any alleged mental or emotional injuries—we conclude the claims are 3 not barred by § 1997e(e).”); see also Canell v. Lightner, 143 F.3d 1210, 1213 (9th 4 Cir. 1998) (“The deprivation of First Amendment rights entitles a plaintiff to 5 judicial relief wholly aside from any physical injury he can show, or any mental 6 or emotional injury he may have incurred. Therefore, § 1997e(e) does not apply 7 to First Amendment Claims regardless of the form of relief sought.”). 8 Here, Plaintiff’s claims are not premised on violations of any alleged mental 9 or emotional injuries, but the violation of his Fourteenth Amendment right to 10 adequate mental health care. Plaintiff alleges in claim two that Dr. Khan and 11 Sandquist played a game of moving him in and out of the psych unit and “denied 12 [him] help from psych services.” (ECF No. 6 at 4, 9-10.) Plaintiff alleges in claim 13 three that Varias moved him from psych services and denied that Plaintiff was 14 suicidal without checking his file when Plaintiff expressed concerns about the 15 move. Plaintiff also alleges that both Varias and Sgt. Floyd joked about tasing 16 Plaintiff and expressed that Plaintiff, who had told them he was suicidal, should 17 just kill himself so that they would have less work. (Id. at 5, 11-12.) Plaintiff 18 requested punitive and compensatory damages because he was “medically 19 neglected” and his “medical & mental health went untreated by Clark County 20 Detention Center employees.” (Id. at 6.) Clearly, Plaintiff brings claims for 21 allegedly not receiving medical treatment as required by the Fourteenth 22 Amendment, which is not subject to § 1997e(e)’s de minimis physical harm 23 requirement. Oliver, 289 F.3d at 630. If this were not the case, then prisoners 24 would be impeded from bringing many denial of mental health care claims, which 25 would often impact plaintiffs mentally and emotionally, not physically. The Court 26 denies Defendants’ motion to dismiss based on the argument that Plaintiff failed 27 to allege compensable damages. 28 /// 1 ii. Dismissal of Dr. Khan 2 The Court finds Defendants’ argument that Dr. Khan cannot be held liable 3 because he never personally participated in any alleged violation similarly 4 unpersuasive. “Liability under § 1983 arises only upon personal participation by 5 the defendant.” Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). “A supervisor 6 is only liable for the constitutional violations of . . . subordinates if the supervisor 7 participated in or directed the violations or knew of the violations and failed to 8 act to prevent them. There is no respondeat superior liability under [§] 1983.” 9 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted). 10 Defendants argue that Dr. Khan should be dismissed from this case because 11 Plaintiff never argues in claim two that Dr. Khan personally participated in the 12 alleged violations. (ECF No. 32 at 10-13.) In his amended complaint, Plaintiff 13 alleges that Sandquist repeatedly removed him from the psych services unit, and 14 Dr. Khan or another psych services employee would eventually move him back. 15 He states that Dr. Khan and Sandquist were playing a game by moving him 16 around and knew that this would make him suicidal. (ECF No. 6 at 10.) Plaintiff 17 goes beyond merely alleging that Dr. Khan should be held liable as Sandquist’s 18 supervisor; he claims that Sandquist and Dr. Khan both participated in this 19 scheme of moving him back and forth. At the motion to dismiss stage, the Court 20 must take Plaintiff’s factual allegations as true and construe them in the light 21 most favorable to the plaintiff. Lee, 250 F.3d at 679. Despite Defendants’ 22 arguments to the contrary, Plaintiff is not required at this stage to prove that Dr. 23 Khan was aware of the transfers prior to Plaintiff telling him. Plaintiff has 24 sufficiently alleged that Dr. Khan personally played a role in the alleged events, 25 so the Court will deny the motion as to this claim. 26 iii. Dismissal of Vincent Varias 27 Defendants lastly argue that Varias should be dismissed from this case 28 because Plaintiff failed to allege a cognizable Fourteenth Amendment violation. 1 Defendants first argue that any derogatory statements Varias made at most 2 caused emotional or mental injury which is not cognizable under the PLRA. (ECF 3 No. 32 at 14.) The Court has already addressed this argument earlier in the 4 order, so the Court will simply note that it rejects the same argument here. 5 Defendants then argue that Varias’s alleged statements are not the basis for 6 a cognizable Fourteenth Amendment inadequate mental health care claim 7 because Varias transferred Plaintiff back to the psych unit immediately after 8 Plaintiff met with Varias for the second time. (Id.) Whether or not Varias 9 immediately returned Plaintiff to the psych unit does not excuse his alleged 10 derogatory statements against Plaintiff. Plaintiff adequately stated a claim that 11 Varias’s statements constituted a denial of mental health care treatment because 12 they increased his suicidal ideation. No reasonable concept of mental health care 13 treatment would include telling a person who had just expressed suicidal 14 ideations that he should just kill himself. Thus, Varias moving Plaintiff back to 15 the psych ward in no way shields his decision to make those statements from a 16 claim for inadequate mental health care treatment. 17 The Court is also unpersuaded by Defendants’ argument that Plaintiff failed 18 to state a cognizable claim with regards to Varias’s decisions concerning 19 Plaintiff’s placement. Defendants assert that Plaintiff faced no substantial risk 20 of harm because Downing was already suicidal and when Plaintiff informed 21 Varias of his suicidal ideation, Varias returned him to the psych unit. (ECF No. 22 32 at 14.) 23 Even though Plaintiff states that he was already suicidal before the transfer, 24 Defendant’s argument ignores that Plaintiff alleges the transfer decision 25 increased his suicidal ideation (ECF No. 6 at 5, 12.), so Plaintiff faced harm as a 26 result of Varias’s actions. Also, even if Plaintiff had not actually suffered any 27 injury, there was still a substantial risk of harm in moving him or anyone else 28 similarly situated from the psych ward without double checking their file or 1 taking any other preventative steps when the individual raises concerns about 2 feeling suicidal. 3 Furthermore, Defendant’s argument that Varias returned Plaintiff to the 4 psych ward immediately after learning of Plaintiff’s suicidal ideations contradicts 5 Plaintiff’s factual pleadings, which the Court must take as true and consider in 6 the most favorable light to Plaintiff at this stage. In his complaint, Plaintiff stated 7 that in response to his request that Varias check his file, Varias simply denied 8 that Plaintiff was suicidal. (Id. at 5.) Thus, despite Defendants’ claim that Varias 9 was unaware of Plaintiff’s suicidal ideations until he met with Plaintiff a second 10 time, Plaintiff alleges he brought up his suicidal feelings immediately after being 11 informed of the transfer. Instead of acknowledging these concerns, Varias 12 attempted to punish Plaintiff for “refusing housing” by sending him to the 13 disciplinary unit. As a result, the Court will deny not dismiss Varias from the 14 case. 15 IV. CONCLUSION 16 It is therefore ordered that the following motions are denied: 1) Plaintiff’s 17 Emergency Motion for a Temporary Restraining Order (TRO) (ECF No. 25), 18 Plaintiff’s Motion for Relief and Affidavit (ECF No. 26), Defendants’ Motion to 19 Dismiss (ECF No. 32), Plaintiff’s Motion for the Court to Reconsider its Order 20 Granting a Stay of Discovery (ECF No. 42), and Plaintiff’s Motion for Default 21 Judgment (ECF No. 55). 22 It is further ordered that Plaintiff’s Motions to Amend his Motion for a TRO 23 (ECF Nos. 34, 36, 53) are granted. 24 /// 25 /// 26 /// 27 /// 28 /// 1 It is further ordered Plaintiff's Motion to Extend Time to Respond to 2 || Defendants’ Motion to Dismiss (ECF No. 37) is granted nunc pro tunc. 3 4 DATED THIS 7th day of June 2024. 5 ° jlosed Jer Yn 8 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12