United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court are Magistrate Judge Hoffman's report and recommendation. (Doc. # 16). The magistrate judge recommends that pro se plaintiff Brent Morris' complaint (doc. # 17) be dismissed for failure to state a claim. Plaintiff has filed objections to the report. (Doc. # 24).
I. Legal Standard
This court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1).
Plaintiff has filed a civil rights complaint pursuant to 42 U.S.C. § 1983 for alleged constitutional violations stemming from his arrest, trial, and conviction in Nevada state court.
Plaintiff alleges that on September 22, 2010, he was unlawfully arrested by officers of the Nevada Gaming Control Board while he was gambling at the Caesars Palace Hotel and Casino ("Caesars"). Plaintiff was arrested pursuant to NRS 463.155 for being an "excluded person."
During the arrest, officers confiscated $768.00 in Caesars gaming chips and $5, 000.00 in gaming chips from the Orleans Hotel and Casino ("Orleans"). Plaintiff was thereafter charged with unlawful entry of an excluded person in violation of NRS 463.155 and fraudulent acts in a gaming establishment in violation of NRS 465.070. See State v. Morris, Case No. C-10-269265-1, Clark County District Court. He was convicted, pursuant to a jury verdict and bench trial, of two counts of commission of fraudulent acts in a gaming establishment and four counts of unlawful entry of an excluded person in a gaming establishment. His conviction was upheld on appeal by the Nevada Supreme Court. See Morris v. State of Nevada, Nevada Supreme Court Case No. 58646 (unpublished order).
During the course of the underlying state court proceedings, it appears plaintiff made three separate motions-one before trial and the other two post-conviction-seeking the return of the gaming chips that were seized during his arrest. The pretrial motion, filed on January 5, 2011, was denied. The first post-conviction motion was filed on June 10, 2011. The motion was denied without prejudice after representation that a forfeiture action had not yet been filed. Plaintiff then filed a third motion seeking the return of the chips seized incident to his arrest.
Ultimately, on March 13, 2012, the motion for return of property was granted in part and denied in part. The $768.00 in gaming chips from Caesars were returned, but the $5, 000.00 in gaming chips from the Orleans were not returned because they were the subject of a separate interpleader action, State of Nevada ex rel. State Gaming Control Board vs. Brent Morris, et al., Las Vegas Township Justice Court, Case No. 12-C-003478 (complaint filed on February 6, 2012) (hereinafter "interpleader action").
Upon initiation of the interpleader action, the $5, 000.00 in Orleans gaming chips were deposited with the court and the parties claiming entitlement to the chips submitted briefing regarding their respective claims. On June 13, 2012, the judge in the interpleader action granted a motion to return the chips to Boyd Gaming rather than returning the chips to plaintiff. The decision has been appealed and is still pending.
As an initial matter, the court acknowledges that the complaint was filed pro se and is therefore held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotations and citations omitted). However, " pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir.1986).
As indicated by the magistrate judge, the complaint is a disorganized narrative of plaintiff's version of events. The court has done its best to identify possible causes of action, and will ...