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Kuzmicki v. Hanrahan

United States District Court, D. Nevada

September 11, 2017



         This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is Stanley Kuzmicki's ("plaintiff) application to proceed in forma pauperis (ECF No. 1) and pro se complaint (ECF No. 1-1). Having reviewed the record, the court recommends that plaintiffs application to proceed in forma pauperis be granted, and that the complaint be dismissed as detailed below.


         As set forth in 28 U.S.C. § 1915(a), the court may authorize a plaintiff to proceed in forma pauperis if he or she is unable to pay the prescribed court fees. The plaintiff need not "be absolutely destitute to enjoy the benefits of the statute." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Rather, "[a]n affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life." Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). He states that his sole source of income derives from monthly disability payments, and that his only asset is an automobile. (ECF No. 1 at 1-2.) Though he does not list any expenses, requiring plaintiff to pay the $400.00 filing fee would surely impose a significant burden on his ability to pay for food, board, and other necessities of life. Based on the foregoing, the court finds that plaintiff is unable to pay the filing fee in this matter. Accordingly, the court recommends that plaintiffs application to proceed in forma pauperis be granted.


         Applications to proceed in forma pauperis are governed by 28 U.S.C. § 1915. Section 1915 provides, in relevant part, that "the court shall dismiss the case at any time if the court determines that... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under section 1915 when reviewing the adequacy of a complaint. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

         Under Rule 12(b)(6), the court must dismiss the complaint if it fails to "state a claim for relief that is plausible on its face." BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Courts accept as true all well-pled factual allegations, set aside legal conclusions, and verify that the factual allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Although the complaint need not contain detailed factual allegations, it must offer more than "a formulaic recitation of the elements of a cause of action" and "raise a right to relief above a speculative level." Twombly, 550 U.S. at 555.

         The complaint is construed in a light most favorable to the plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court takes particular care when reviewing the pleadings of a pro se party, for a more forgiving standard applies to litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a liberal construction may not be used to supply an essential element of the claim not initially pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If dismissal is appropriate, a pro se plaintiff must be given some notice of the deficiencies of his or her complaint, and leave to amend, unless the opportunity to amend would be futile. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). Despite this leniency, a district court may in its discretion dismiss an in forma pauperis complaint if the claim "lacks an arguable basis in either law or fact." Id. This includes claims based on untenable legal conclusions (e.g., claims against defendants who are immune from suit) or fanciful factual allegations. See Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).


         Plaintiff brings this action, pursuant to 42 U.S.C. § 1983, against defendants Samantha Hanrahan ("S. Hanrahan"), David Hanrahan ("D. Hanrahan"), Warren R. Westad (Westad), Sergeant Shelly ("Shelly") and Brandon Gardner ("Gardner"). (ECF No. 1-1 at 2, 3.) Plaintiffs complaint is a single, continuous paragraph, and it does not identify the legal claims he is bringing. From what the court can discern, plaintiff alleges generally that S. Hanrahan, D. Hanrahan, and Westad improperly evicted plaintiff, and that Shelly and Gardner unlawfully obstructed plaintiffs access to the criminal justice system. Because of the complaint's lack of structure, the court will provide its analysis in three parts, first analyzing plaintiffs claims against Gardner, then his claims against Shelly, and, finally, his claims against S. Hanrahan, D. Hanrahan, and Westad.

         A. Gardner is Entitled to Absolute Immunity

         Plaintiffs dispute with Gardner, a Churchill County Deputy District Attorney, appears to involve official memoranda in which Gardner denies plaintiffs request to file a criminal complaint against S. Hanrahan, D. Hanrahan, and Westad. (ECF No. 1-1 at 15.) Plaintiff alleges that Gardner also defamed plaintiff by referring to him as "Defendant" in the memoranda. (Id. at 16.) However, absolute immunity protects those activities undertaken by a prosecutor in his or her function as an advocate that are "intimately associated with the judicial phase of the process." Imbler v. Packman, 424 U.S. 409, 418-419, 424 (1976). Drafting and sharing memoranda regarding "whether and when to prosecute" a potential crime clearly falls into the category of protected activity. Id. at 431 n.33. Thus, plaintiffs claims against Gardner should be dismissed with prejudice because Gardner is entitled to absolute immunity from civil liability and amendment would be futile. 28 U.S.C. 1915(e)(2)(B)(iii); see Cato, 70 F.3d at 1106.

         B. Plaintiff Fails to State a Claim Against Shelly Upon Which Relief Can Be Granted

         Plaintiff further alleges that in August 2013, Shelly, a police sergeant, refused to allow plaintiff to file a criminal complaint against an unidentified person who called plaintiff a "prick." (ECF No. 1-1 at 12.) Despite this accusation, plaintiff admits that Shelly listened to plaintiffs grievance. (Id.) After plaintiff demanded that Shelly charge the person with verbal assault, Shelly notified plaintiff that such a charge was not viable. (Id.) In July 2015, Shelly again refused to file a criminal complaint, this time against S. Hanrahan and D. Hanrahan for forgery and fraud. (Id. at 13.) However, plaintiff admits that he complained to Shelly several times about S. Hawaiian's and D. Hawaiian's alleged crimes, leading Shelly to inform plaintiff that his dispute was a "civil matter" for which he should retain a lawyer or seek redress in small claims court. (Id. at 13). Plaintiff further admits that in August 2015, he went to the police station to pick up "reports in this case, " that the police secretary gave him multiple police reports regarding his grievances, and that Shelly authored at least one of these reports. (Id. at 13, 14.) Even so, plaintiff maintains that Shelly's conduct constitute a violation of his civil rights. (Id. at 14.)

         Applications to proceed in forma pauperis are governed by 28 U.S.C. 1915(e), which requires the court to dismiss the complaint if it fails to "state a claim on which relief can be granted." 28 U.S.C. 1915(e)(2)(B)(ii) (2012). A complaint is properly dismissed when the claim for relief is not "plausible on its face." Twombly, 550 U.S. at 570; Resnick, 213 F.3d at 447. A complaint will also fail to state a claim where it does not contain "a demand for the relief sought.. .." Fed.R.Civ.P. 8(a)(3); Alvarez v. Hill,518 F.3d 1152, 1159 (9th Cir. 2008) (Federal Rule of Civil Procedure 8(a) applies to complaint brought in forma pauperis). In making this determination, courts accept as true all ...

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