James Flavy Coy Brown, on behalf of himself and those similarly situated, Plaintiff-Appellant,
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.
and Submitted August 8, 2016 San Francisco, California
from the United States District Court for the District of
Nevada, No. 2:13-cv-01039-JCM-PAL James C. Mahan, District
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.
C. Anderson (argued), Chief Deputy Attorney General, Office
of the Attorney General, Las Vegas, Nevada, for State
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.
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.
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
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.
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.
Chief District Judge:
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 ...