United States District Court, D. Nevada
ORDER AND REPORT & RECOMMENDATION.
FERENBACH UNITED STATES MAGISTRATE JUDGE
the Court are Lopez's application to proceed in forma
pauperis (ECF No. 1) and complaint (ECF No. 1-1).
Lopez's in forma pauperis application is
granted. For the reasons stated below, Lopez's Claims 5,
10 and 11 should be dismissed with prejudice. Claims 1, 2
regarding the First and Fourteenth Amendments, 3, 4, 6, 9, 12
and 15 are dismissed with leave to amend. Proceedings in the
remaining Claims 2 regarding the Fourth Amendment, 7, 8, 13
and 14 are stayed until further order of the Court.
Lopez's complaint, Lopez alleges that he was dining with
his fiancé and a friend on December 4, 2016, at the
Golden Nugget Casino (“GNLV”). (ECF No. 1-1 at
3). Lopez alleges that his friend paid for the meal.
Id. at 4. Then, Lopez claims that he and his
fiancé asked for a food container for leftovers,
including for his drink, which was to be transferred from a
glass cup to a plastic to-go cup. Id. When he made
this request, Lopez alleges that security was summoned.
Id. According to Lopez, he was not intoxicated or
under the influence of drugs. Id. Lopez asserts that
four to five security guards accosted him and his
fiancé as they made their way to the exit.
Id. The security guards allegedly told Lopez that he
was prohibited from entering the GNLV again. Id.
Lopez claims that he kept his composure, remained fully
cooperative, respectful, and posed no threat to the safety of
anyone around. Id.
Lopez alleges that before exiting GNLV, Lopez approached an
ash tray and retrieved a cigarette butt. Id.
Afterwards Lopez alleges GNLV security brutally assaulted him
by kicking, beating, and pummeling him. Id.
Following the attack, Lopez alleges that security handcuffed
and detained him in a holding cell until the police arrived.
Id. Lopez alleges that police then took him into
custody on unrelated outstanding warrants. Id. at 5.
He alleges that his resulting injuries were readily apparent
to medical personnel at the city jail. Id. Lopez
alleges he suffered substantial pain as a result of the
injuries from this incident. Id.
filings present two questions: (1) whether Lopez may proceed
in forma pauperis under 28 U.S.C. § 1915(e);
and (2) whether Lopez's complaint states a plausible
claim for relief. Each is discussed below.
In Forma Pauperis
application to proceed in forma pauperis is granted.
§ 1915(a)(1) permits a plaintiff to bring a civil action
“without prepayment of fees or security thereof”
if the plaintiff submits a financial affidavit that
demonstrates the plaintiff's “is unable to pay such
fees or give security therefor.” Under §
1915(a)(1), Lopez submitted a financial affidavit. (ECF No.
1). According to the affidavit, Lopez is incarcerated and has
no money or assets. Lopez's application to proceed in
forma pauperis is, therefore, granted.
Plausible Claim for Relief
the Court grants Lopez's application to proceed in
forma pauperis, it must review Lopez's complaint to
determine whether the complaint is frivolous, malicious, or
fails to state a plausible claim. See 28 U.S.C.
§ 1915(e). The Court's review of Lopez's
complaint is guided by two legal standards: Federal Rule of
Civil Procedure 8 and the Supreme Court's decision in
Erickson v. Pardus, 551 U.S. 89 (2007).
Civ. P. 8(a) provides that a complaint “that states a
claim for relief must contain … a short and plain
statement of the claim showing that the [plaintiff] is
entitled to relief.” See Fed. R. Civ. P.
8(a)(2). The Supreme Court's decision in Ashcroft v.
Iqbal, states that in order to satisfy Rule 8's
requirements a complaint's allegations must cross
“the line from conceivable to plausible.” See
Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). The
Court's decisions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) and Iqbal
prescribe a two-step procedure to determine whether a
complaint's allegations cross that line.
the Court must identify “the allegations in the
complaint that are not entitled to the assumption of
truth.” See Iqbal, 556 U.S. at 679, 680.
Factual allegations are not entitled to the assumption of
truth if they are “merely consistent with liability,
” id. at 678, or “amount to nothing more
than a ‘formulaic recitation of the elements' of a
constitutional” claim. Id. at 681.
the Court must determine whether the complaint states a
“plausible” claim for relief. Id. at
679. A claim is “plausible” if the factual
allegations, which are accepted as true, “allow the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
678. This inquiry is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679
(citation omitted). If the factual allegations, which are
accepted as true, “do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged-but it has not ‘show[n]'-‘that
the pleader is entitled to relief.' ” Id.
(citing Fed.R.Civ.P. 8(a)(2)).
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” See Erickson, 551 U.S. at 94
(quoting Estelle v. Gamble, 429 U.S. 97, 106
Court dismisses a complaint under § 1915(e), the
plaintiff should be given leave to amend the complaint with
directions as to curing its deficiencies, unless it is clear
from the face of the complaint that the deficiencies could
not be cured by amendment. See Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation
claims arise from his arrest in Las Vegas, Nevada. Lopez
alleges several claims against GNLV and unknown GNLV security
1. Claim 1
alleges GNLV violated his First, Fourth, and Fourteenth
Amendment rights pursuant to 42 U.S.C. § 1981 (a). Under
§ 1981 (a), every person within the United States has
the same right to “make and enforce contracts, to sue,
be parties, give evidence and to the full and equal benefit
of all laws” “as is enjoyed by white citizens and
shall be subject to like punishment, pains, penalties,
taxes.” 42 U.S.C. § 1981. Based on the facts in
the complaint Lopez does not state how GNLV violated 42
U.S.C. § 1981 or how he was denied equal benefit of the
law based on his race. Lopez does not allege any facts
concerning his race in the complaint. Therefore, this claim
is dismissed with leave to amend.
2. Claim 2
Lopez alleges GNLV violated his First, Fourth, and Fourteenth
Amendment rights pursuant to 42 U.S.C. § 1983. Under
§ 1983, any person who under color of state law causes
another person to be deprived of “any rights,
privileges or immunities, secured by the Constitution, shall
be liable to the party injured in an action at law.”
See 42 U.S.C. § 1983. To assert a § 1983
claim, a plaintiff must prove: (1) a violation of rights
protected by the Constitution or created by federal statute,
(2) proximately caused (3)by conduct of a
“person” (4) acting under color of state law.
See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
Lopez alleges GNLV and GNLV security and personnel were in
violation of 42 U.S.C. § 1983 when they violated his
constitutional rights. Lopez claims GNLV defendants violated
his Fourth Amendment right when they beat, arrested, and
detained him without justification. An excessive force claim
brought under § 1983 requires that the reasonableness of
a particular use of force be judged from the perspective of a
reasonable officer on the scene. See Graham v.
Connor, 490 U.S. 386, 396 (1989). Reasonableness under
the Fourth Amendment is determined by a “careful
balancing of the ...