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Foley v. Graham

United States District Court, D. Nevada

March 24, 2017

Michael Foley, Plaintiff
v.
Kurt Graham, et al., Defendants

          ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [ECF NO. 3]

          Jennifer A. Dorsey United States District Judge

         Michael Foley brings this civil-rights action against a handful of county officials. Magistrate Judge Ferenbach screened Foley's complaint, and he recommends that I allow only Foley's excessive-force claim to proceed and dismiss some claims with prejudice and others without prejudice and with leave to amend. Foley objects to the dismissal of any of his claims. Having reviewed the objected-to portions of the magistrate judge's report and recommendation de novo, I adopt in part the report and recommendation, permit Foley's unlawful-arrest and excessive-force claims to proceed, and give him until April 24, 2017, to file an amended complaint curing the deficiencies outlined in this order.

         Discussion

         A. Standards of review

         A district judge reviews objections to a magistrate judge's proposed findings and recommendations de novo.[1] “The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.”[2] The standard of review applied to the unobjected-to portions of the report and recommendation is left to the district judge's discretion.[3]

         Because Foley is proceeding in forma pauperis, the court must review his complaint to identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief.[4] To state a claim under 42 USC § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States and (2) that the alleged violation was committed by a person acting under color of state law.[5] Pro se pleadings, however, must be liberally construed.[6]

         Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standards under § 1915 when reviewing the adequacy of a pro se complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions for curing its deficiencies unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment.[7]

         B. Foley's objections

         1. Heck-barred claims

         The magistrate judge recommends that I dismiss with prejudice Foley's unlawful-arrest claim as barred by Heck v. Humphrey.[8] Foley objects, arguing that “regardless of the validity or status of any underlying State action, [he] is entitled to freedom from bodily restraint in accord with due process 24/7.”[9]

         Under the Supreme Court's decision in Heck v. Humphrey, [10] a prisoner cannot use §1983 to obtain damages or other relief where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence.[11] In other words, “if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which § 1983 damages are sought, the §1983 action must be dismissed.”[12] A § 1983 action should be allowed to proceed, however, if success on the merits will not necessarily invalidate a conviction against the plaintiff.[13]

         The magistrate judge reasoned that, because Foley does not allege that the state matter for which he was taken into custody-failure to pay an $840 family-court obligation-was reversed, expunged, or declared invalid, his unlawful-arrest claim is Heck-barred. I disagree with this conclusion. Foley claims that the officers arrested him at his home without a valid arrest warrant because the warrant was not signed by a judge.[14] Accepting this allegation as true as I must at this stage, Foley could conceivably prevail on this type of unlawful-arrest claim without necessarily invalidating the family-court judgment against him.

         Accordingly, I permit Foley's unlawful-arrest claim to proceed against the defendants who allegedly perpetrated the unlawful arrest: investigators Graham and Bourne and John Doe #1. I dismiss this claim without prejudice and with leave to amend against Sheriff Gillespie because Graham alleges no facts to show how the sheriff personally participated in the alleged violation. Upon amendment, Foley must keep in mind that there is no respondeat superior liability for § 1983 actions; a supervisor is liable for the constitutional violations of his subordinates only if he participated in or directed the violations or knew of them and failed to act to prevent them.[15] I dismiss this claim with prejudice against the Clark County Detention Center because the jail is an inanimate building, not a person or entity capable of being sued.

         Foley also alleges that John Doe defendants # 2-4 “caused false, deceptive, and misleading documents to be used” to make his arrest and confinement appear lawful.[16] These allegations are too vague and conclusory to state a plausible claim for relief or to allow me to determine whether they are Heck-barred. Foley's claim against John Does #2-4 are therefore dismissed without prejudice and with leave to amend. If Foley chooses to replead this claim, he should specify what types of false information or documents were provided by what types of individuals and to whom.

         2. Defendants ...


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