United States District Court, D. Nevada
MIGUEL A. MARTINEZ, Plaintiff(s),
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant(s).
J. KOPPE United States Magistrate Judge.
is proceeding in this action pro se and requested
authority pursuant to 28 U.S.C. § 1915 to proceed in
forma pauperis. Docket No. 1. On May 14, 2015, the Court
denied Plaintiff's application without prejudice. Docket
No. 2. On June 8, 2015, Plaintiff submitted a renewed
application, which the Court granted on June 12, 2015. Docket
Nos. 3, 5. On April 26, 2016, the Court screened
Plaintiff's complaint pursuant to 28 U.S.C. § 1915,
and dismissed the complaint with leave to amend. Docket No.
7. The Court found that the complaint attempted to allege a
claim for excessive force under 42 U.S.C. § 1983, but
failed to identify the appropriate constitutional amendment
to form the basis of this § 1983 claim. Id. at
2-3. The Court also found that some of Plaintiff's claims
failed to sufficiently allege that any right secured by the
Constitution had been violated by a specific person acting
under the color of law. Id. at 3. The Court provided
Plaintiff an opportunity to cure those defects. Id.
has now filed an amended complaint on the Court's form
complaint for 42 U.S.C. § 1983 actions. Docket No. 11.
Plaintiff alleges that, on May 15, 2013, Defendant Michael
Donovan responded to a report that Plaintiff had discharged a
BB gun at Defendant Christian Esterline. Id. at 4.
Plaintiff further alleges that Defendant Donovan ordered
Plaintiff to stop, but Plaintiff tossed the gun away and
fled. Id. at 5. Plaintiff alleges that Defendant
Donovan then shot Plaintiff multiple times. Id.
Plaintiff also alleges that Defendants Donovan, Hancock,
Esterline, doe police officers, and the Clark County sheriff
conspired to conceal information about his arrest.
Id. at 4-5. Plaintiff appears to insinuate that
these defendants' actions undermined the validity of his
arrest and subsequent criminal prosecution. Id.
of Plaintiff's amended complaint refers to excessive
force and the Fourth Amendment. Id. at 4-5. The
Court therefore construes Count I as attempting to allege a
§ 1983 claim for excessive force. Further, because
Plaintiff alleges that only Defendant Donovan physically
harmed him during the arrest, the Court finds that Plaintiff
is attempting to allege a Fourth Amendment claim solely
against Defendant Donovan. See id.
state a claim under § 1983, a plaintiff must allege that
a right secured by the Constitution or statutory law has been
violated, and the deprivation was committed by a person
acting under color of law. See Anderson v. Warner,
451 F.3d 1063, 1067 (9th Cir. 2006). Additionally,
allegations that law enforcement officers used excessive
force in arresting a plaintiff may establish a violation of
the Fourth Amendment, which may in turn form the basis of a
§ 1983 claim. See, e.g., Gravelet-Blondin
v. Shelton, 728 F.3d 1086, 1090-91 (9th Cir. 2013). The
Court finds that Plaintiff has stated a claim upon which
relief can be granted as to Defendant Donovan because
Plaintiff alleges that Defendant Donovan acted under color of
law as a police officer and shot Plaintiff multiple times
during an arrest, in violation of the Fourth Amendment.
Docket No. 11 at 2, 5.
II of Plaintiff's amended complaint suffers from some of
the same deficiencies that the Court identified in its
initial screening order regarding Plaintiff's original
complaint, and is otherwise duplicative of Count I.
See Docket Nos. 1-1 at 7, 7 at 3, and 11 at 7.
Therefore, Count II does not state any additional claim upon
which relief can be granted.
III of Plaintiff's amended complaint alleges the same
facts as Count I and refers to an alleged conspiracy to
deprive Plaintiff of his civil rights. See Docket
No. 11 at 4-6, 10-12. Plaintiff also refers to 42 U.S.C.
§§ 1985 and 1986 elsewhere in his amended
complaint. Id. at 3. The Court therefore construes
Count III as attempting to allege a §§ 1983 and
1985 claim for conspiracy to violate Plaintiff's Fourth
and Fourteenth Amendment rights, and a § 1986 claim for
neglecting to prevent violations of Plaintiff's civil
rights, against all of the defendants in this action. See
Id. at 3, 10-12.
Court finds that Count III of Plaintiff's amended
complaint does not state a claim upon which relief can be
granted. See, e.g., Lacey v. Maricopa Cty.,
693 F.3d 896, 935 (9th Cir. 2012) (discussing civil
conspiracy in the § 1983 context); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1141 (9th Cir. 2000)
(discussing § 1985); Trerice v. Pederson, 769
F.2d 1398, 1403 (9th Cir. 1985) (discussing relationship
between § 1985 and § 1986 claims).
Plaintiff identifies Defendant Esterline as a police
informant. Docket No. 11 at 5. Thus, Defendant Esterline does
not appear to be a state actor. To the extent that Plaintiff
wishes to bring any § 1983 claims against Defendant
Esterline, Plaintiff must show that there was
“significant state involvement” in Defendant
Esterline's actions. Lopez v. Dep't of
Health Servs., 939 F.2d 881, 883 (9th Cir. 1991).
Plaintiff has not made this showing.
also includes the Las Vegas Metropolitan Police Department
(“LVMPD”) as a defendant in this action. Docket
No. 11 at 1. The Ninth Circuit has held that, pursuant to
Federal Rule of Civil Procedure 17(b), state law determines
the issue of whether a department of a municipality may sue
or be sued. See, e.g., Streit v. Cty. of Los
Angeles, 236 F.3d 552, 565 (9th Cir. 2001). The LVMPD is
a department of the City of Las Vegas and, “[i]n the
absence of statutory authorization, a department of the
municipal government may not, in the department name, sue or
be sued.” Wayment v. Holmes, 912 P.2d 816, 819
(Nev. 1996) (citing 64 C.J.S. Municipal Corporations §
2195 (1950)); see Schneider v. Elko Cnty. Sheriff's
Dep't, 17 F.Supp.2d 1162, 1665 (D. Nev. 1998);
see also Wallace v. City of North Las Vegas, 2011 WL
2971241, at *1 (D. Nev. 2011) (“Plaintiffs have not
identified any statutory authority that permits the
Department to be sued, and the court is unaware of any such
authority”); Cerros v. North Las Vegas Police
Dep't, 2008 WL 608641, at *9 (D. Nev. 2008)
(“Nevada does not grant authorization of a police
department to sue or be sued”). Thus, Plaintiff has not
demonstrated that the LVMPD is a proper defendant in this
action. The Court gives Plaintiff one final
opportunity to correct the deficiencies in his complaint.
IT IS ORDERED that:
Plaintiff is granted leave to file a second amended complaint
to cure the deficiencies noted above. If Plaintiff chooses to
file a second amended complaint, he is advised that an
amended complaint supersedes (replaces) the original
complaint and, thus, the second amended complaint must be
complete in itself. See Hal Roach Studios, Inc. v.
Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th
Cir. 1989) (holding that “[t]he fact that a party was
named in the original complaint is irrelevant; an amended
pleading supersedes the original”); see also Lacey
v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
(holding that for claims dismissed with prejudice, a
plaintiff is not required to reallege such claims in a