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Brown v. Rawson-Neal Psychiatric Hospital

United States Court of Appeals, Ninth Circuit

November 4, 2016

James Flavy Coy Brown, on behalf of himself and those similarly situated, Plaintiff-Appellant,
v.
Rawson-Neal Psychiatric Hospital; Leon Ravin, M.D., individually and in his official capacity as Associate Medical Director; Anurag Gupta, M.D., individually; Southern Nevada Adult Mental Health Services; Chelsea Szklany, individually and in her official capacity as Administrator; Nevada Bureau of Health Care Quality and Compliance; Nevada Division of Health, Division of Mental Health and Developmental Services; Richard Whitley, in his official capacity as Administrator of the Nevada Division of Public and Behavioral Health, formerly Nevada Division of Health and the Nevada Division of Mental Health & Developmental Services; Nevada Department of Health and Human Services; Mike Willden, in his official capacity as Director; Linda J. White M.D., individually and in her official capacity as Statewide Psychiatric Medical Director of the State of Nevada; Kyle Devine, in his official capacity as Bureau Chief of the Nevada Bureau of Health Care Quality and Compliance, Defendants-Appellees.

          Argued and Submitted August 8, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Nevada, No. 2:13-cv-01039-JCM-PAL James C. Mahan, District Judge, Presiding

          Mark E. Merin (argued) and Paul H. Masuhara, Law Office of Mark E. Merin, Sacramento, California; Staci J. Pratt and Allen Lichtenstein, Allen Lichtenstein, Attorney at Law Ltd., Las Vegas, Nevada; for Plaintiff-Appellant.

          Linda C. Anderson (argued), Chief Deputy Attorney General, Office of the Attorney General, Las Vegas, Nevada, for State Defendants-Appellees.

          David P. Pruett (argued), Carroll Kelly Trotter Franzen McKenna & Peabody, Long Beach, California, for Defendant-Appellee Linda J. White, M.D.

          Before: J. Clifford Wallace and Susan P. Graber, Circuit Judges, and Barbara M. G. Lynn, [*] Chief District Judge.

         SUMMARY[**]

         Civil Rights

         The panel affirmed the district court's dismissal, pursuant to Fed.R.Civ.P. 41(b), of an action arising from plaintiff's discharge from the Rawson-Neal Psychiatric Hospital in Las Vegas, Nevada, and his subsequent transportation to Sacramento, California.

         The district court initially dismissed plaintiff's federal constitutional and statutory claims without prejudice under Fed.R.Civ.P. 12(b)(6), with leave to amend. Plaintiff, who was represented by counsel, moved for reconsideration. The district court denied that motion and, again, granted plaintiff leave to amend his complaint. When plaintiff did not timely file an amended complaint or otherwise respond to the court's order, the district court dismissed the federal claims with prejudice, as a sanction under Rule 41(b).

         The panel held that plaintiff waived the argument that the district court abused its discretion in dismissing his federal claims under Rule 41(b) by failing to raise the issue in his opening brief. The panel held that in the absence of a showing that the district court abused its discretion, and because the prior interlocutory order of dismissal under Rule 12(b)(6) was not reviewable, there was no basis to appeal.

         Dissenting, Judge Graber stated that (1) the panel should have exercised discretion to consider the Rule 41(b) issue; (2) the district court abused its discretion by dismissing the case as a sanction under Rule 41(b), rather than on the merits under Rule 12(b)(6); and (3) on the merits the district court erred in ruling that plaintiff failed to state a federal claim.

          OPINION

          LYNN, Chief District Judge:

         Appellant James Flavy Coy Brown appeals from the district court's judgment dismissing his state and federal claims against Southern Nevada Adult Mental Health Services, Chelsea Szklany, Mike Willden, Richard Whitely, Leon Ravin, M.D., Anurag Gupta, M.D., and Kyle Devine (the "State Defendants"), arising out of his February 11, 2013 discharge from the Rawson-Neal Psychiatric Hospital in Las Vegas, Nevada and subsequent ...


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