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Dearing v. Eagan

United States District Court, D. Nevada

November 21, 2017

DAVID L. DEARING, Plaintiff,
L. EAGAN, et al., Defendants.



         Before the Court are Plaintiff David Dearing's application to proceed in forma pauperis (ECF No. 1), complaint (ECF No. 1-1), and request to file his inmate balance history report (ECF No. 5). For the reasons discussed below, Plaintiff's in forma pauperis application and request to file his report are granted. The Court, however, orders that Plaintiff's complaint be dismissed without prejudice.


         Plaintiff's filings present two questions: (1) whether Plaintiff may proceed in forma pauperis under 28 U.S.C. § 1915(e) and (2) whether Plaintiff's complaint states a plausible claim for relief. Each is discussed below.

         I. Plaintiff May Proceed In Forma Pauperis

         Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to pay such fees or give security therefor.” According to Plaintiff's affidavit, he is currently unemployed and incarcerated. (ECF No. 1 at 1, 4). Plaintiff submitted a copy of his inmate balance history report to show that he cannot afford to pay fees in this case. (ECF No. 5). Therefore, Plaintiff's application to proceed in forma pauperis (ECF No. 1) and request to file his inmate balance history report (ECF No. 5) are granted.

         II. Section 1915(e) Screening

         Because the Court grants Plaintiff's application to proceed in forma pauperis, it must review Plaintiff's complaint to determine whether the complaint is frivolous, malicious, or fails to state a plausible claim. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil Procedure 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.” The Supreme Court's decision in Ashcroft v. Iqbal states that to satisfy Rule 8's requirements, a complaint's allegations must cross “the line from conceivable to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)). 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. at 679 (citing Fed.R.Civ.P. 8(a)(2)). 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. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         Plaintiff's case centers around an incident on July 5, 2015. Plaintiff alleges Las Vegas Metropolitan Police Officers Eagan and Ahlin knowingly and willingly took a false police report accusing Plaintiff of having a physical altercation with his ex-girlfriend on that date. (ECF No. 1-1 at 2-5, 20-22). The police report attached to the complaint was not signed by either officer, and Plaintiff argues the report contains several inaccurate pieces of information provided by the ex-girlfriend. (Id.). Supervising Officer Perry also failed to sign the police report. (Id. at 6). Plaintiff was arrested in Elko on August 28, 2015 and transported to Clark County on September 3, 2015. (Id. at 3). Plaintiff argues the lack of signatures “makes [his] arrest a[] false arrest.” (Id. at 4, 6).

         On October 16, 2017, Plaintiff sent a letter to Sheriff Lombardo arguing that the case against him was “fabricated.” (ECF No. 1-1 at 10-13). Attached were several Statements of Fact Plaintiff wanted the involved officers to sign to attest that the facts as presented by Plaintiff were correct. (Id. at 14-16). Plaintiff did not receive a response, and he subsequently filed his complaint on October 31, 2017. (Id. at 1-2). Plaintiff brings a 42 U.S.C. § 1983 action against Officers Eagan, Ahlin, and Perry and Sheriff Lombardo alleging his rights under 28 U.S.C. § 1746 and the Fifth, Fourth, Eighth, and Fourteenth Amendments have been violated. (Id. at 1, 4-6).

         A. Laws Cited as Bases for Plaintiff's Claims

         “The district Courts shall have original jurisdiction of all civil actions arising under the Constitution, Laws, or treaties of the United States. 28 U.S.C. § 1331. Because Plaintiffs' complaint cites several portions of the Constitution and a federal law, the Court has jurisdiction over this case. In Nevada, the applicable statute of limitations for 42 U.S.C. § 1983 claims is two years. Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989) (per curiam); Abram v. City of Reno, No. 315-cv-00029-MMD-WGC, 2015 WL 5829886, at *3 (D. Nev. Oct. 6, 2015).

         Plaintiff asserts Officers Eagan, Ahlin, and Perry have violated 28 U.S.C. § 1746 related to their “unsworn declarations under penalty of perjury.” (ECF No. 1-1 at 4-6). 28 U.S.C. § 1746 does not support any claim for damages. The statute simply provides the format a sworn declaration may take; it does not state that the failure to sign a document may be the basis for a suit. Therefore, the Court orders that any claims based on “unsworn declarations under penalty of perjury” be dismissed without prejudice. Should Plaintiff find a statute that creates a cause of action for the alleged acts of the Officers, Plaintiff may amend these claims.

         Plaintiff also argues Officers Eagan, Ahlin, and Perry have violated the Fifth and Fourteenth Amendments through their “deliberate indifference.” (ECF No. 1-1 at 4-6). The Fifth Amendment does not apply in this case because it applies solely to actions by the federal government, and Plaintiff does not allege that any Defendant is a federal actor. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001). The Fourteenth Amendment provides that states shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. While Plaintiff's ...

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