Nickler v. Cnty. of Clark

• Court: U.S. District Court — District of Nevada
• Writing for the Court: James C. Mahan UNITED STATES DISTRICT JUDGE
• Decision Date: 02 November 2016
• Docket Number: Case No. 2:14-CV-1907 JCM (CWH)
• Citation: Nickler v. Cnty. of Clark, Case No. 2:14-CV-1907 JCM (CWH) (D. Nev. Nov 02, 2016)
• Parties: JACQUELYNN NICKLER, Plaintiff(s), v. COUNTY OF CLARK, et al., Defendant(s).

JACQUELYNN NICKLER, Plaintiff(s), v. COUNTY OF CLARK, et al., Defendant(s).

Case No. 2:14-CV-1907 JCM (CWH)

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

November 2, 2016

ORDER

Presently before the court is defendant Steve Grierson's renewed motion to dismiss. (ECF No. 53). Plaintiff Jacquelynn Nickler filed a response (ECF No. 55)¹, to which defendant replied (ECF No. 57).

Defendants Clark County and Kathleen Lambermont joined defendant Grierson's renewed motion to dismiss. (ECF No. 54). Plaintiff filed a response to the joinder (ECF No. 56), to which defendants replied (ECF No. 58).

I. Facts

This is a civil rights case brought under 42 U.S.C. § 1983. Plaintiff works as a district attorney team clerk with the Clark County district attorney's ("CCDA") office at the Regional Justice Center ("RJC"). At the relevant time, defendant Grierson was the RJC court executive officer; defendant Lambermont was an administrator for the CCDA's office. (ECF No. 1).

The instant action arises from incidents occurring on December 17, 2012. On that morning, plaintiff arrived to work and belatedly received her calendar for the day. (ECF No. 1 at 3). In the preceding month, the court had implemented a new calendaring program which increased the workload for those in plaintiff's position. (ECF No. 1 at 3-4).

As a result of the new program, plaintiff's calendar on December 17, 2012, was longer than usual. (ECF No. 1 at 4). Plaintiff and her supervisor rushed to prepare the additional cases on her calendar before court commenced for the day. (ECF No. 1 at 4). During this time, plaintiff made a comment along the lines of "no wonder shit like Friday happens." (ECF No. 1 at 4).

On the preceding Friday, December 14, 2012, another justice court employee, Rosemary Servin, left work without completing her tasks. (ECF No. 1 at 3). She allegedly did so out of frustration with the new calendaring system. (ECF No. 1 at 3). Plaintiff contends that she was referencing Servin's departure in making the above comment. (ECF No. 1 at 4). However, Friday, December 14, 2012, was also the date of the Sandy Hook Elementary School shooting in Newtown, Connecticut. (ECF No. 1 at 5).

Based on her statement, plaintiff was later escorted out of a meeting to a private office by defendant Lambermont. (ECF No. 1 at 4). Defendant Lambermont advised plaintiff that the employer would be conducting a workplace violence assessment. (ECF No. 1 at 4). Plaintiff was instructed to pack up her belongings and was escorted out of the building. (ECF No. 1 at 4). Defendant Lambermont suspended plaintiff pending an investigation. (ECF No. 1 at 4). Plaintiff's identification badge and office keys were confiscated. (ECF No. 1 at 5).

Also on December 17, 2012, defendant Lambermont observed a number of violence and gun-related cartoons, photos, and logos in plaintiff's cubicle. (ECF No. 1 at 5). These items increased defendant Lambermont's concern that plaintiff posed some danger to the RJC community. (ECF No. 22).

On December 21, 2012, plaintiff met with human resources. (ECF No. 1 at 5). On December 31, 2012, plaintiff attended a disciplinary hearing. (ECF No. 1 at 5). At the conclusion of the hearing, plaintiff's access badge was returned and she was granted permission to return to work on January 3, 2013. (ECF No. 1 at 5). However, on January 2, 2013, defendant Lambermontcalled plaintiff at her home and told her that she would not have the same "badging privileges" as other employees when she returned to work. (ECF No. 1 at 5). Generally, RJC employees may use their badges to enter the building without being searched, while members of the public must remove their shoes and consent to scans of their belongings and person. (ECF No. 1 at 6).

On January 3, 2013, plaintiff arrived at the loading dock near the south entrance to the RJC at 6:30 a.m., as instructed. (ECF No. 1 at 6). The loading dock was not open and plaintiff could not get into the building. Clark County district attorney Steve Wolfson eventually arrived and inquired into why plaintiff was denied access. (ECF No. 1 at 6). The loading dock was later opened and plaintiff was required to remove her jacket and shoes and submit to a scan of her belongings and person before entering the building. (ECF No. 1 at 6).

Upon plaintiff's return to work, defendant Lambermont required plaintiff to undergo a certificate for fitness procedure. (ECF No. 1 at 6). As part of this process, plaintiff attended a mental health evaluation on January 24, 2013. (ECF No. 1 at 6). The evaluation included a written examination and meeting with a psychologist. (ECF No. 1 at 6). Plaintiff was issued a certificate of fitness to perform all duties of her position with no restrictions. (ECF No. 1 at 6).

Plaintiff authorized the limited release of the results of this certification procedure to prove that she could perform her position without restriction. (ECF No. 1 at 6). However, plaintiff contends that after the certificate of fitness was issued, defendants Lambermont and Grierson "insisted upon obtaining information beyond the scope of [p]laintiff's limited release in violation of [p]laintiff's HIPAA rights." (ECF No. 1 at 7).

Further, plaintiff asserts that despite the certification, she continued to be subjected to searches upon entry to the RJC through the public entrance every day, while other employees were not searched. (ECF No. 1 at 7). Plaintiff claims that her requests for the reinstatement of her badging privileges were refused. (ECF No. 1 at 7).

On November 14, 2014, plaintiff filed a complaint based on the foregoing, asserting three causes of action: (1) 42 U.S.C. § 1983 for various constitutional violations; (2) a Monell claim; and (3) negligence. (ECF No. 1). Defendants Grierson and Lambermont are sued in their individual capacities. (ECF No. 1 at 2).

On February 12, 2015, plaintiff filed a motion for a preliminary injunction (ECF No. 8), which the court denied on April 22, 2015 (ECF No. 39). On May 22, 2015, plaintiff filed a notice of appeal as to the court's order denying her motion. (ECF No. 43). The Ninth Circuit affirmed the court's judgment. (ECF Nos. 49, 50, 52).

Thereafter, defendants filed the instant motion seeking dismissal of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF Nos. 53, 54).

II. Legal Standard

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

"Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. 662, 678 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678.

Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged—but not shown—that the pleader is entitled to relief." Id.(internal quotation marks omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, in relevant part:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Id.

III. Discussion

A. 42 U.S.C. § 1983

Title 42 U.S.C. § 1983 provides a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. Cnty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006).

For a defendant to be held liable under § 1983, the plaintiff must demonstrate that the defendant personally participated in the alleged denial of rights. In other words, there can be no liability under § 1983 based on respondeat superior or other theory of vicarious liability. Monell v. Dep't of Soc. Services, 436 U.S. 658, 663 n.7 (1978); see also Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Liability under § 1983 attaches...