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Westmoreland v. Lake's Crossing Center

United States District Court, D. Nevada

October 24, 2017

TREVANTAE T. WESTMORELAND, Plaintiff,
v.
LAKE'S CROSSING CENTER, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Miranda M. Du, 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 Trevantae Westmoreland's (“plaintiff”) application to proceed in forma pauperis (ECF No. 1) and his pro se complaint (ECF No. 1-1). Having reviewed the record, the court recommends that plaintiff's application to proceed in forma pauperis be granted, and that the complaint be dismissed as detailed below.

         I. IN FORMA PAUPERIS APPLICATION

         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). The complaint indicates that plaintiff receives zero income per month, and has no additional assets. (ECF No. 1 at 1, 2.) Based on the foregoing, the court finds that plaintiff is unable to pay the filing fee in this matter. The court therefore recommends that plaintiff's application to proceed in forma pauperis be granted.

         II. LEGAL STANDARD

         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) (2012). 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.” Bell Atl. 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).

         III. DISCUSSION

         According to the complaint, plaintiff is an adult with mental and physical disabilities. (ECF No. 1-1 at 3; see ECF No. 1-2 at 17, 18, 19, 20.) Plaintiff's mother, Karitha Smith (“Smith”), brings this action on plaintiff's behalf, presumably because “plaintiff cannot read nor write.” (ECF No. 1-1 at 5, 9.) Prior to filing this action, plaintiff was arrested and charged with two separate state crimes. (ECF No. 4-6 at 3.) The complaint indicates that plaintiff is in custody at Lake's Crossing Center (“Lake's Crossing”). (ECF No. 1-1 at 8.) From what the court can discern, Lake's Crossing provides plaintiff with treatment and programming to restore plaintiff to legal competency so that he can stand trial for state criminal charges currently pending against him. (Id. at 8, 9.)

         Smith describes, albeit vaguely, a variety of wrongs committed against plaintiff while he was in custody at Lake's Crossing. Smith does not identify the particular actors involved. (See Id. at 4, 6, 7.) She alleges in a generalized fashion that plaintiff was denied “snack or canteen” privileges, phone privileges, visitation privileges, proper medical care by “qualified” doctors, the ability to have other patients read him the bible, and protection from other inmates. (Id.) Smith also alleges that Lake's Crossing staff discriminated against plaintiff by treating him differently than other inmates on the basis of his race, religion, and disability. (Id. at 4, 10.) Smith claims that these actions constitute a violation of plaintiff's Eighth and Fourteenth Amendment Rights. (Id. at 4, 6, 7, 8.) Smith asks the court to place plaintiff in a “more suitable environment for the disabled with special accommodations ….” (Id. at 14.)

         Additionally, Smith claims that M. Edelen (“Edelen”), a law enforcement officer for the Reno Police Department, unconstitutionally coerced plaintiff's confession to a sexual assault charge. (ECF No. 1-1 at 6.) On March 17, 2017, plaintiff was arrested for carrying a concealed “air gun” without a permit. (ECF no. 4-7 at 3.) While plaintiff was in custody, Edelen interviewed plaintiff about allegations that plaintiff sexually assaulted a minor. (ECF No. 4-6 at 3.) Plaintiff waived his Miranda rights and confessed to sexually assaulting a minor in violation of Nevada Revised Statute 200.366. (Id.) Smith contends that Edelen coerced plaintiff's confession because plaintiff lacks “knowledge of his civil rights” and because plaintiff cannot read or write. (ECF No. 1-1 at 6.) Smith seeks to have the court declare a “mistrial” in the state criminal proceeding currently pending against plaintiff, or in the alternative, Smith asks that plaintiff's confession “be thrown out as evidence from here on out.” (Id. at 14.)

         Finally, Smith claims that the Public Defenders Office (“the Public Defenders”) failed to provide plaintiff with an effective attorney. (Id. at 5.) At some point after plaintiff's arrest, a Nevada state court appointed a public defender - Kathryn A.B. Hickman (“Hickman”) - to represent plaintiff in the criminal proceeding against him. (ECF No. 1-2 at 2.) On April 14, 2017, plaintiff was declared incompetent to stand trial. (Id.) According to Smith, Hickman stated that she will not attempt to dismiss plaintiff's signed confession until plaintiff becomes competent. (ECF No 1-1 at 9.) Rather, Smith alleges that Hickman allowed plaintiff's signed confession to be used “as evidence against [plaintiff], ” though Smith does not elaborate further. (Id.) As an additional point of concern, Smith states that Hickman did not move for a reduction in plaintiff's bail or request that plaintiff be released on his own recognizance. (Id. at 5.) Smith generalizes that Hickman has intimidated plaintiff, hasn't sought “all evidence in [plaintiff's] favor, ” and, ultimately, “is doing absolutely nothing to defend [plaintiff].” (Id. at 9.) Plaintiff requests that this court provide “unbiased legal representation for this case.” (Id. at 5.) It is unclear whether Smith is asking this court to replace Hickman with a different court-appointed attorney in plaintiff's state criminal trial, or is instead requesting a court-appointed attorney to represent plaintiff in the civil rights action before this court. (See id.)

         Despite listing the State Bar of Nevada (“the State Bar”) as a defendant, the complaint does not raise any claims against the State Bar. (ECF No. 1-1 at 2.)

         For the reasons discussed below, the court dismisses plaintiff's claims without prejudice, in ...


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