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Dunn v. Christensen

United States District Court, D. Nevada

January 29, 2018

DREW M. CHRISTENSEN, et al., Defendants.



         This matter is before the court on a screening of Plaintiff John Michael Dunn's Second Amended Complaint (ECF No. 24) pursuant to 28 U.S.C. § 1915A. The undersigned submits the following report of findings and recommendation to the district judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice.

         This matter is also before the court on Plaintiff John Michael Dunn's Motion to Stay (ECF No. 27). The motion is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.


         Mr. Dunn is a pro se detainee in custody at the Clark County Detention Center, and he has received permission to proceed in forma pauperis (“IFP”) in this civil action. Order (ECF No. 2). This case arises from Dunn's allegations that defendants violated his Constitutional rights by executing unauthorized search warrants, fabricating evidence, neglecting to investigate his case, failing to provide effective assistance of counsel, and other misconduct in relation to a pending criminal prosecution in the Eighth Judicial District Court of the State of Nevada. See State of Nevada v. John Dunn, No. C-14-300445-1.[1]

         I. Procedural History

         Upon review of the Amended Complaint (ECF No. 11), the court issued a Screening Order (ECF No. 14) allowing Dunn to file a second amended complaint to correct defects in his pleading. In particular, the court found that the District Attorney's Office of Clark County is not proper a defendant in a § 1983 action. Mr. Dunn failed to state plausible claims against Carmine J. Colucci, since a criminal defense attorney is not a state actor, or against Patrick Burns, since a prosecutor is entitled to absolute immunity for his duties as an advocate. Additionally, he failed to allege a colorable municipal liability claim against the Las Vegas Metropolitan Police Department (“LVMPD”) or an official capacity claim against Drew M. Christensen and Michael Fairweather. To the extent Mr. Dunn intended to allege claims against Christensen or Fairweather in their individual capacity for their own conduct, the court informed Dunn that the Younger abstention doctrine likely precluded this court's jurisdiction based on the pending state criminal proceeding. Jan. 27, 2017 Screening Order (ECF No. 14) at 8-9. However, the court gave him leave to amend and instructed him to advise the court whether the criminal case had been finally resolved, and how.

         Dunn subsequently filed a Notice of Appeal (ECF No. 15) regarding the screening order on February 7, 2017. The Ninth Circuit dismissed his appeal for lack of jurisdiction. Mar. 20, 2017 Order (ECF No. 19).

         II. Dunn's Current Filings

         A. Second Amended Complaint (ECF No. 24)

         Mr. Dunn filed a 44-page Second Amended Complaint on April 24, 2017, alleging violations of his First, Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendment rights pursuant to 42 U.S.C. §§ 1983 and 1985. He names the following defendants: Clark County, LVMPD, Drew M. Christensen, Carmine J. Colucci, Michael Fairweather, and Patrick Burns. 2nd Am. Compl. (ECF No. 24) at 7. Christensen is the Director of the Clark County Office of Appointed Counsel. Colucci was Dunn's appointed counsel in the state criminal case. Fairweather is a detective employed by LVMPD. Burns is a deputy district attorney at the Clark County District Attorney's Office who prosecuted the state criminal case. Only Colucci is sued in his individual capacity; Christensen, Fairweather, and Burns are each sued in their official capacity. Id. Mr. Dunn seeks $100 million dollars in monetary damages, but not injunctive or declaratory relief. See id. at 6.

         The allegations of the Second Amended Complaint repeat those in the previous pleadings. Dunn alleges that LVMPD was not judicially authorized to conduct electronic surveillance on his cell phone or track his movements with a GPS device to discover his residence. Id. at 4, 10, 13- 14, 16-17, 22. Detective Fairweather allegedly forged judges' signatures and manufactured court orders, sealing orders, a GPS tracking warrant, and a residential search warrant. Id. at 4, 13, 19, 25. LVMPD detectives used a pen register trap and trace device to obtain location data from his cell phone without judicial approval. Id. at 19. These actions amounted to a warrantless search violating his Fourth Amendment rights. Id. at 4, 14-15, 20-23. LVMPD manufactured warrants and court orders to salvage the case. Id. at 24.

         Dunn also alleges Prosecutor Burns obtained Dunn's indictment with tainted evidence and perjury. Id. at 5, 10, 13. Burns knew the evidence was tainted because it was derived from illegal surveillance and search. Id. at 23. The District Attorney's Office offered the counterfeit warrants and court orders into evidence to help cover up police wrongdoing. Id. at 24.

         Dunn claims that to assist in the cover-up and guarantee conviction, Director Christensen appointed Colucci to his case. Id. at 5, 13, 24. Mr. Colucci was an ineffective defense lawyer with feeble skills and he failed to scrutinize Dunn's case, investigate the false search warrants and police misconduct, or file appropriate motions. Id. at 5, 10-11, 13, 25-26. Mr. Christensen “delegates attorneys to obtain convictions by depriving individuals of their 6th and 14th Amendment rights.” Id. at 24. Dunn alleges that the Office of Appointed Counsel “offers a corrupt service” and Christensen, acting in his official capacity, allowed the unconstitutional practices and policies to continue. Id. at 24. Christensen and Colluci violated the Sixth and Fourteenth Amendments by denying Dunn effective assistance of counsel. Id. at 25.

         Dunn alleges that the legal representation Colluci provided fell far below adequate representation. Id. at 10. He asserts that the American Bar Association's standards for criminal justice provide that “counsel has a duty to explore all avenues leading to facts relevant to the merits of the case.” Id. at 11. Counsel's performance in his case fell below the relevant standards. Id. at 11, 26 (citing Strickland v. Washington, 466 U.S. 668 (1984)). The Office of Appointed Counsel conspired with LVMPD and the District Attorney's Office “to secure a conviction by denying the right to effective assistance of counsel by neglecting to obtain relevant discovery.” Id. The District Attorney's Office, LVMPD, and the Office of Appointed Counsel deprived Dunn of his fundamental rights in a systemic pattern of corruption designed to obstruct the due process of law and abuse the legal process in order to obtain a conviction. Id. at 5. Clark County and LVMPD's constitutional violations were the result of a policy or custom. Id. at 32-33.

         B. Motion to Stay (ECF No. 27)

         While the new pleading awaited screening, Mr. Dunn filed a Motion to Stay asking the court to hold this case in abeyance while his state criminal proceedings were pending. He asserts that a stay is appropriate because a dismissal would result in the loss of his claims. Mr. Dunn believes his § 1983 claim for warrantless search accrued on July 19, 2014, at the time of his arrest. Because he must wait to pursue his claims until the criminal proceeding has been finally resolved, he runs a risk that his claims may be time-barred.


         I. ...

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