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Mustafanos v. State

United States District Court, D. Nevada

March 13, 2017

YOSEF I. MUSTAFANOS, and SHIRLEY J. CLIFTON by and through YOSEF L. MUSTAFANOS, her legally appointed guardian, Plaintiffs,



         I. SUMMARY

         Plaintiffs, who are proceeding pro se, appear to sue everyone who has any connection with disputes between Plaintiff Yosef I. Mustafanos (“Mustafanos”) and Defendant Deborah June Strode (“Strode”) relating to their marriage and separation and the guardianship of Mustafanos' sister, Plaintiff Shirley J. Clifton (“Clifton”), along with other encounters between Mustafanos and certain Defendants. The Complaint is 60 pages in length and contains repeated allegations about these disputes. (ECF No. 1.) Plaintiffs assert they sue “The State of Nevada, by and through the actions of its Legislature, Judicial branch, Executive Branch, Judge Leon Abasturi, ” private attorneys for Plaintiffs and for Strode, Under Sheriff Albert Torres and several deputies, and Lyon County. (ECF No. 1 at 17.) It is no surprise then that several defendants - Albert Torres (“Torres”) (ECF No. 9), Judge Leon Abasturi (“Judge Abasturi”) and the State of Nevada (“State Defendant”) (ECF No. 12), P.J. Baltes (“Baltes”) (ECF No. 15), Andrew Strode (ECF No. 18), Day Williams (ECF No. 29), Aaron Mouritsen (ECF No. 50) and Strode (ECF No. 69) - have moved for dismissal or a more definite statement.[1] Plaintiffs initially fail to timely respond to these motions, and then filed multiple subsequent responses, which resulted in motions to strike their improper responses. Plaintiffs have moved for default judgment against Strode (ECF Nos. 75, 89); Strode, who is proceeding pro se, has moved for summary judgment (ECF No. 71). Plaintiffs have also filed three motions for preliminary injunctive relief. (ECF Nos. 3, 37, 55.) Because of the prolix nature of the Complaint and the number of motions to dismiss, the Court considers the Complaint and the briefs relating to these motions collectively.


         The following facts are taken primarily from the Complaint, which is lengthy, repetitive and confusing. Mustafanos is African American. Strode is Caucasian. Plaintiffs describe several events that appear to relate to Mustafanos' disputes with his ex-spouse, Strode, involving their marriage and property and Strode's bankruptcy proceedings, and with others relating to Mustafanos' arrest and the guardianship of Clifton, among other incidents.[2]

         The primary allegations relate to Mustafanos' domestic dispute with Strode. Strode had abandoned her marriage with Mustafanos and had not resided at the property located at 5400 Railroad Street in Silver Springs (“Property”) for over two years. However, Judge Abasturi ordered Plaintiffs to vacate the Property and ordered a sale of the Property and for certain personal properties to be left with the Property. On September 14, 2014, without a court order, Kantz accompanied Strode, Andrew Strode and DePaoli to the Property, threatened and ordered Mustafanos to let them come in and take Strode's items. Mustatanos felt threatened and complied. After they left, Mustafanos called Under Sheriff Torres, who came to the Property and said he would counsel Kantz and directed Kantz not to go on the Property again. The next day, Strode obtained a Temporary Order for Protection against Mustafanos. A few weeks later, on October 4, 2014, Kantz came to the Property with Strode and others and damaged the padlock on Plaintiffs' metal shed. Strode had organized members of the New Life Foursquare Church to bring trucks and trailers to help her move her belongings from the Property and had planned for Plaintiffs to permit entry at the command of Kantz and the Temporary Protective Order. When Mustafanos refused to allow entry, these individuals left, but Strode had apparently hid inside the storage shed and would not tell Mustafanos where she hid some items.

         Plaintiffs complain about alleged wrongful conduct in connection with Strode's bankruptcy proceedings, Judge Abasturi's orders relating to disposition of personal properties, proceedings involving Clifton's guardianship, and about the attorneys who represent Strode and attorneys who represented Mustafanos.

         The Complaint also contains allegations about general treatment of Plaintiffs because of his race. For example, Mustafanos called the Sheriff's Department to take a police report but the deputy who showed up shouted commands at Mustafanos and ordered him to hold his arms out and spread his legs because he is African American. Mustafanos was arrested over an incident at Wal-Mart when he was trying to get help calming down Clifton, but P.J. Baltes, the deputy who showed up, recognized that Mustafanos is African American and arrested him. While in custody, Mustafanos was placed in administrative segregation and denied religious services and materials. Another example is Plaintiffs' dealings with Defendant Anderson, who would make racist remarks when he was drunk. Anderson had apparently applied for a temporary protective order against Mustafanos.

         The Complaint named the State of Nevada, Lyon County, Baltes, Kantz, Torres, Strode, DePaoli, Andrew Strode, Anderson, J.D., and David O'Mara (Strode's attorney). As noted, Plaintiffs also sue their former attorneys, James Shields Beasley, Jonathon King, Day Williams, and Aaron Mouritsen. Plaintiffs allege 22 claims under federal and state law.


         A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pleaded complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than “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 Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not satisfy Rule 8(a). Id. at 678. conclusory allegations However, the notice pleading requirements of Rule 8(a) can be violated not only “when a pleading says too little, ” but also “when a pleading says too much.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citing Cafasso, U.S. ex rel. v. Gen.Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (“[W]e have never held - and we know of no authority supporting the proposition - that a pleading may be of unlimited length and opacity. Our cases instruct otherwise.”) (citations omitted); McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996) (affirming a dismissal under Rule 8, and stating that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case impose unfair burdens on litigants and judges”)).

         The court may sua sponte dismiss a complaint for failure to comply with Rule 8. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995); Long v. JP Morgan Chase Bank, Nat. Ass'n, 848 F.Supp.2d 1166, 1173 (D. Haw. 2012). The Complaint here says far too much, and unnecessarily so. While the Court must view the pro se Complaint here liberally, “even a pro se complaint is subject to dismissal if the pleading fails to reasonably inform the adverse party of the basis for the cause of action” as the Complaint fails to do here. See In re "Santa Barbara Like It Is Today" Copyright Infringement Litig., 294 F.R.D. 105, 108 (D. Nev. 1982). The Complaint fails to identify which claims are asserted against which Defendants. In fact, Plaintiffs often lump Defendants as a group under the specific claims for relief. For example, the second claim is for violation of the Nevada Constitution and alleges that Plaintiffs were deprived of their constitutional rights “[b]y reason of defendants' conduct.” (ECF No. 1 at 39.) For these reasons, the Court agrees with the Defendants who have moved for dismissal that the Complaint is confusing.

         A. Albert Torres (ECF No. 9)

         The Complaint alleges that Undersheriff Albert Torres responded to Mustafanos' call about Kantz after the September 14, 2014, incident. Torres allegedly assured Mustanfanos that Kantz “will be ordered not to step foot on” the Property again. (ECF No. 1 at 11, 31.) Because the Complaint lumps defendants together at times, it is not clear whether Plaintiffs are asserting all claims against Torres or only the conspiracy claim (fifth claim for relief) which identifies Torres. The Court agrees with Torres that the Complaint fails to allege his personal involvement in the purported violations of Plaintiffs' constitutional rights. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under [§]1983.”). Claims against Torres are dismissed with leave to amend.

         B. Judge Abasturi and State Defendant (ECF No. 12)

         1. State Defendant

         The State Defendant argues that it has not waived immunity from liability except as what is provided for under certain state statutes, such as NRS 41.031(2) which requires that claims against the State Defendant be brought in the name of the State of Nevada on relation of a particular department or agency. (ECF No. 12 at 9-10.) The Court agrees with the State Defendant that it has been improperly named as a party. Moreover, Plaintiffs cannot sue the State Defendant under 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (holding that states are not persons for purposes of § 1983). The Complaint makes conclusory allegations that “the State of Nevada, the Legislature, Judicial and Executive Branches of its Government, in doing the things hereinafter described committed these actions towards [Plaintiffs].” (ECF No. 1 at 17.) The response is not any clearer as to the allegations and claims against the State Defendant. (ECF No. 35.) ...

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