United States District Court, D. Nevada
ORDER AND REPORT OF FINDINGS AND RECOMMENDATION (MOT.
TO STAY - ECF NO. 27)
A. LEEN, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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).
Dunn's Current Filings
Second Amended Complaint (ECF No. 24)
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.
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.
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.
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.
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.
Motion to Stay (ECF No. 27)
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.