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Mark S. Daniels v. Travelnevada.Com Reno Air Races; Nevada Commission On

May 9, 2013


The opinion of the court was delivered by: Larry R. Hicks United States District Judge


This is a suit under 42 U.S.C. § 1983. Before the court are various defendants' motions to dismiss. [#18*fn1 (Washoe County); #21 (Reno Air Race Association ("RARA") and Michael Houghton); #24 (City of Reno); #25 (Reno-Tahoe Airport Authority ("RTAA") and Krys Bart).] Plaintiff Mark Daniels has responded (##29, 36, 43, 40, respectively), and defendants have replied (##33, 46, 51, 50, respectively). Daniels has also submitted several motions to amend his complaint (##30, 37, 41, 44, 48) and several motions for extensions of time (##31, 38, 42, 45, 58).

Facts and Procedural History

The events at the heart of Daniels' pro se complaint are twofold: first, defendants RARA and Houghton (a RARA official) have, since 2004, issued Daniels "notices of exclusion" refusing him access to the Reno Air Races*fn2 and prohibiting him from attending the event. (Am. Compl #4, p. 6.) Second, Daniels was arrested for trespass in both 2004 and 2009 at the Reno Air Races. (Id. at p. 5.)

Daniels is a disabled journalist, and he has alleged that these events gave rise to violations of the First, Fourth, Fifth, Sixth, Ninth, and Sixteenth Amendments as well as the Americans with Disabilities Act of 1990 ("ADA") and federal RICO statutes. He also lodges claims of malicious prosecution, false imprisonment, and failure to supervise.

Daniels' claims against RARA and Houghton derive principally from the notices of exclusion, and his claims against the City of Reno principally from the two arrests. His claims against the remaining defendants (Nevada Commission on Tourism, Brian Krolicki, RTAA, Washoe County, Krys Bart) stem from his allegations that these defendants wrongfully enabled the conduct of RARA, Houghton, and the City of Reno.

Daniels filed his complaint on September 4, 2012, amending it on September 6. (Compl. #1; Am. Compl. # 4.) In response to the various defendants' motions to dismiss, Daniels has included allegations and facts not mentioned in his complaints. (See, e.g., Daniels' Response #36.) He has also submitted at least three motions to amend his complaint, sometimes as independent motions and sometimes as responses to the defendants' arguments. (See, e.g., Daniels's Response #43id.; see also Daniels' Mot. to Am. #44.) The defendants have moved to dismiss the original amended complaint (#4), and they have opposed Daniels' motions to amend (see, e.g., ##52, 53,

Legal Standard

To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. See Mendiondo v.

Centinela Hospital Medical Center, 521 F.3d 1097, 1103 (9th Cir. 2008). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations; however, a pleading that offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Furthermore, Rule 8(a)(2) requires a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the misconduct alleged. See id. at 678-79. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678 (internal quotation marks and citation omitted).

In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as Id. (citation omitted). However, "bare assertions . . . amount[ing] to nothing more than a formulaic recitation of the elements of a . . . claim . . . are not entitled to an assumption of truth." Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 680) (alteration in original) (internal quotation marks omitted). The court discounts these allegations because they do "nothing more than state a legal conclusion -- even if that conclusion is cast in the form of a factual allegation." Id. "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Id. (quoting Iqbal, 556 U.S. at 678).


Daniels has failed to state claims for which relief may be granted, and therefore dismissal is appropriate. However, ...

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