United States District Court, D. Nevada
M. Navarro, Chief Judge United Stares District Judge.
before the Court is the Motion to Dismiss, (ECF No. 5), filed
by Defendants Boyd Gaming Corporation, Coast Hotels and
Casinos, Inc. dba the Orleans Hotel and Casino
("Boyd"), Jeffrey Fine ('Tine"), and
Elizabeth Sobczak ("Sobczak") (collectively
"Defendants"). Plaintiff Brent Morns ("Plaintiff)
filed a Response, (ECF No. 57), and Plaintiff filed a Reply,
(ECF No. 61). For the reasons discussed below, the Court
GRANTS Defendants' Motion.
Complaint asserts various civil rights claims pursuant to 42
U.S.C. § 1983 for alleged constitutional violations
stemming from his arrest, trial, and conviction in Nevada
state court. (See generally Ex. B to Pet. for
Removal ('Compl."), ECF No. 1-2). Plaintiff alleges
that on September 22, 2010, he was unlawfully arrested by
officers of the Nevada Gaming Control Board while he was
gambling at the Caesars Palace Hotel and Casino
('Caesars"). (Id. at 2). Plaintiff was
arrested pursuant to NRS § 463.155 for being an
"excluded person." (Id.). During the
arrest, officers confiscated $768.00 in Caesars gaming chips
and $5, 000.00 in gaming chips from the Orleans Hotel and
Casino ("Orleans"). (Id.).
was thereafter charged with unlawful entry of an excluded
person in violation of NRS § 463.155 and fraudulent acts
in a gaming establishment, in violation of NRS §
465.070.3. See Nevada v. Morris, Case No.
C-10-269265-1, Clark County District Court.Following a jury
verdict and bench trial, Plaintiff was convicted of two
counts of commission of fraudulent acts in a gaming
establishment and four counts of unlawful entry of an
excluded person in a gaming establishment. Id. His
conviction was upheld on appeal by the Nevada Supreme Court.
See Morris v. State of Nevada, Nev S.Ct. Case No.
58646 (unpublished order).
the course of the underlying state court proceedings,
Plaintiff alleges that he made three separate motions-one
before trial and the other two post-conviction-seeking the
return of the gaming chips that were seized during his
arrest. (See Compl. at 6-7). The pretrial motion,
filed on January 5, 2011, was denied. (Id. at 7).
The first post-conviction motion was filed on June 10, 2011.
(Id.). The motion was denied without prejudice after
representation that a forfeiture action had not yet been
filed. (Id.). Plaintiff then filed a third motion
seeking the return of the chips seized incident to his
arrest. (Id.). Ultimately, on March 13, 2012, the
motion for return of property was granted in part and denied
in part. (Id. at 8). The $768.00 in gaming chips
from Caesars were returned, but the $5, 000.00 in gaming
chips from the Orleans were not returned because they were
the subject of a separate interpleader action, State of
Nevada ex rel. State Gaming Control Board vs. Brent Morris,
et al., Las Vegas Township Justice Court, Case No.
12-C-003478 (complaint filed on February 6, 2012)
(hereinafter "Interpleader Action").
initiation of the Interpleader Action, the $5, 000.00 in
Orleans gaming chips were deposited with the Justice Court,
and the parties claiming entitlement to the chips submitted
briefing regarding their respective claims. (Id.).
On June 13, 2012, the judge in the Interpleader Action
granted a motion to return the chips to Boyd Gaming.
(Id.). Shortly thereafter, Plaintiff appealed the
Justice Court's decision in the Interpleader Action to
the Clark County District Court, which affirmed the lower
court's order on May 2, 2016. (Id. at 9). In the
instant Complaint, Plaintiff alleges that Defendants
illegally seized the $5, 000.00 in Orleans gaming chips in
violation of his Fourth Amendment rights. (Id. at
12(b)(6) of the Federal Rules of Civil Procedure mandates
that a court dismiss a cause of action that fails to state a
claim upon which relief can be granted. See North Star
Int'l v. Ariz. Corp. Comm'n, 720F.2d 578, 581
(9th Cir. 1983). When considering a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Ail. Corp. v.
Twombly, 550 U.S. 544, 555(2007). In considering whether
the complaint is sufficient to state a claim, the Court will
take all material allegations as true and construe them in
the light most favorable to the plaintiff. See NL Indus.,
Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555) (emphasis added). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Rule 8(a)(2) requires that a
plaintiff's complaint contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief." Fed.R.Civ.P. 8(a)(2). "Prolix,
confusing complaints" should be dismissed because
"they impose unfair burdens on litigants and
judges." McHenry v. Renne, 84 F.3d 1172, 1179
(9th Cir. 1996).
not Plaintiff's first attempt to litigate the facts of
this case. Aside from the state court cases discussed
supra, Plaintiff previously filed a nearly identical
case in this district, Morris v. The Orleans Hotel &
Casino, Case No. 2:12-cv-01683-JCM-CWH (the
"Orleans case"), against, inter
alia, the Orleans, Fine, and Sobczak. In the
Orleans case, United States District Judge James C.
Mahan adopted the recommendation of United States Magistrate
Judge Carl W. Hoffman, agreeing that "[t]he claims
against the defendant employees of the Orleans [here Fines
and Sobczak] fail as amatter of law." Order 4:15-16,
Morris v. The Orleans Hotel & Casino, Case No.
2:12-cv-01683-JCM-CWH, ECF No. 26. Specifically, Judge Mahan
found that as "private individuals acting within the
scope of their employment for a private hotel and casino,
" Plaintiff failed to allege that the alleged
constitutional violations were committed by a person acting
under color of state law as required to state a claim under
42 U.S.C. § 1983. Id. 4:4-16. Plaintiff
appealed Judge Mahan's ruling dismissing his complaint,
but the Ninth Circuit found the appeal frivolous and later
dismissed the appeal for Plaintiff's failure to pay the
filing fee. See id., Dkt. Nos. 34, 35.
argue that in light of the Orleans case, the instant
action is barred by claim preclusion. (Mot. to Dismiss
11:22-23, ECF No. 5). Claim preclusion, also referred to as
res judicata, "provides that a final judgment on the
merits bars further claims by parties or their privies based
on the same cause of action." Tahoe-Sierra Pres.
Counsel, Inc. v. Tahoe Reg'l Planning
Agency, 322F.3d 1064, 1077 (9th Cir. 2003). "A
final judgment on the merits of an action precludes the
parties or their privies form relitigating issues that were
or could have been raised in that action." Federated
Dep't Stores, Inc. v. Moitie, 453 U.S. 394, 398
(1981). 'The doctrine of res judicata is meant to protect
parties against being harassed by repetitive actions."
Bell v. United States, No. CV F 02-5077, 2002 WL
1987395, at *4 (E.D. Cal. June 28, 2002).
preclusion requires three things: (1) identity of claims; (2)
a final judgment on the merits; and (3) the same parties, or
privity between the parties." Harris v. County of
Orange,682 F.3d 1126, 1132 (9th Cir. 2012). Applying
the three-part test, the Court holds that claim preclusion
applies to this matter. These suits are based on the same
event-the seizure of $5, 000.00 in gaming chips from the
Orleans that were not returned to Plaintiff because they were
the subject the Interpleader Action. As in the
Orleans case, Plaintiff asserts that the seizure of
gaming chips by Boyd and its employees violated his Fourth
Amendment rights. These same claims have already been
dismissed by Judge Mahan. See Federated Dep't
Stores, 452 U.S. at 399 n.3 ("The dismissal for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) is a 'judgment on the
merits.'"). Finally, the parties in both cases are
identical except for Boyd. However, as Boyd's subsidiary,
the Orleans and Boyd are in privity with each other.
(See Compl. at 3); see also Owens v. Kaiser
Found. Health Plan, Inc.,244 F.3d 708, 713 (9th Cir.
2001). Moreover, "[a]n employer-employee relationship