United States District Court, D. Nevada
YOSEF I. MUSTAFANOS, and SHIRLEY J. CLIFTON by and through YOSEF L. MUSTAFANOS, her legally appointed guardian, Plaintiffs,
THE STATE OF NEVADA, LYON COUNTY, P.J. BALTES, GREGORY KANTZ, ALBERT TORRES, DEBORAH JUNE STRODE, LAURA DEPAOLI, ANDREW STRODE, EDWARD ANDERSON, JD, LEON ABASTURI, DAVID O'MARA, AARON MOURITSEN, JAMES SHIELDS BEASLEY, JONATHAN KING, DAY WILLIAMS and DOES 1 thru 10 inclusive, Defendants.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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. 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.
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.
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.
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
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.
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.
MOTIONS TO DISMISS
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”)).
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.
Albert Torres (ECF No. 9)
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.
Judge Abasturi and State Defendant (ECF No. 12)
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.