United States District Court, D. Nevada
DAVID L. DEARING, Plaintiff,
L. EAGAN, et al., Defendants.
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC
NO. 1), COMPLAINT (EFC NO. 1-1), AND REQUEST TO SUBMIT REPORT
(ECF NO. 5)
FERENBACH UNITED STATES MAGISTRATE JUDGE
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
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.
Plaintiff May Proceed In Forma Pauperis
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.
Section 1915(e) Screening
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).
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).
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).
Laws Cited as Bases for Plaintiff's Claims
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,
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.
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 ...