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Howard v. State

United States District Court, D. Nevada

September 30, 2014

ABDUL HOWARD, Plaintiff,
STATE OF NEVADA, et al., Defendants.


RICHARD F. BOULWARE, II, District Judge.

Defendants Philip J. Kohn and Darren G. Cox's Motion to Dismiss (Dkt. No. 29)


Before the Court is a Motion to Dismiss (Dkt. No. 29) filed jointly by Defendants Philip J. Kohn and Darren G. Cox (collectively, "Defendants"), attorneys employed by the Clark County Public Defender's Office. Upon consideration of the motion and supplemental pleadings on file, the motion is granted for the reasons stated below.


The facts in this case date back to 2003, when Plaintiff Abdul Howard was facing criminal charges in the District Court of Clark County, Nevada. Howard states in his Complaint that on February 8th, 2003, he met with Cox, his public defender, and signed a plea agreement. According to the Complaint, this agreement did not indicate that he was pleading guilty to a sexual offense. During his conversation with Cox, Howard alleges that Cox told him to sign his initials in a blank area on the front page of the agreement, which Howard did. On April 10th, 2003, the plea agreement was presented and entered in court. Howard alleges that without his knowledge or consent, Cox inserted a statement into his plea agreement next to his initials which stipulated that Howard had committed a sexual offense.

Howard brought a civil rights complaint against Cox and Kohn (Cox's supervisor and the head Clark County Public Defender) pursuant to 42 U.S.C. § 1983. Howard alleges that this interlineation in his plea agreement was not mentioned at his plea allocution and that it caused him to be denied parole in July of 2011 and to serve an additional four months in prison. Howard also states that he was not aware of the interlineation until 2010 when he requested a copy of his judgment of conviction. In his complaint, Howard alleges various constitutional violations based on the denial of his liberty through Cox's presentment of the plea agreement containing the interlineation to the district court, as well as fraud and RICO claims. Howard seeks compensatory damages, punitive damages, and for Cox to be investigated, disbarred and charged with contempt of court.

In their motion to dismiss, Defendants argue that Howard's § 1983 claim is barred by Heck v. Humphrey, 512. U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997), and that his fraud claim is barred under a similar doctrine in Nevada law as pronounced in Morgano v. Smith, 110 Nev. 1025 (1994). In addition, Defendants argue that the § 1983 claim is barred because Cox, as a public defender engaged in the traditional functions of criminal defense counsel, was not acting under color of state law for the purposes of § 1983., Defendants also contend that Howard's § 1983 claim against Kohn should be dismissed for failure to allege that the interlineation was done pursuant to any official policy or custom as required by Monell v. Dept. of Social Services, 436 U.S. 658, 690-91 (1978). Defendants further argue that Howard's claims for fraud and RICO violations are insufficiently plead and that punitive damages are unavailable under Nevada law for tort claims against government officials. Finally, Defendants argue that this Court is barred from hearing Howard's claims under the Rooker-Feldman doctrine.


An initial pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, "[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party." Faulkner v. ADT Sec. Services, Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted). In addition, documents filed by a plaintiff who is proceeding without counsel (as is the case here) must be liberally construed, and a pro se complaint must be "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal citations and quotation marks omitted); see also Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014).

To survive a motion to dismiss, a complaint need not contain "detailed factual allegations, " but it must do more than assert "labels and conclusions" or "a formulaic recitation of the elements of a cause of action...." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " meaning that the court can reasonably infer "that the defendant is liable for the misconduct alleged." Id. at 678 (internal quotation and citation omitted). The Ninth Circuit, in elaborating on the pleading standard described in Twombly and Iqbal, has held that for a complaint to survive dismissal, the plaintiff must allege non-conclusory facts that, together with reasonable inferences from those facts, are "plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

Allegations of fraud or mistake in a complaint are exposed to heightened scrutiny. In pleading such allegations, the plaintiff "must state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). The plaintiff must also "set forth what is false or misleading about a statement, and why it is false." Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (internal quotations omitted). Thus, claims of fraud or mistake must meet Rule 8's plausibility requirement as well as Rule 9(b)'s particularity requirement. Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir. 2011).


As stated above, the Court will construe Howard's pro se Complaint liberally. Howard's Complaint alleges the violation of 42 U.S.C. § 1983 by both ...

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