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Lopez v. Golden Nugget Casino

United States District Court, D. Nevada

July 28, 2017

ALEJANDRO LOPEZ, Plaintiff,
v.
GOLDEN NUGGET CASINO, Defendant.

          ORDER AND REPORT & RECOMMENDATION.

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Background

         In 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.

         Next, 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.

         II. Discussion

         Lopez's 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.

         A. In Forma Pauperis

         Lopez's 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.

         B. Plausible Claim for Relief

         a. Legal Standard

         Because 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).

         Fed. R. 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.

         First, 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.

         Second, 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)).

         “[A] 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 (1976)).

         If the 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 omitted).

         Lopez's claims arise from his arrest in Las Vegas, Nevada. Lopez alleges several claims against GNLV and unknown GNLV security and personnel:

1. Claim 1

         Lopez 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. 1991).

         Here, 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 ‚Äúcareful balancing of the ...


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