United States District Court, D. Nevada
DON M. SAVAGE, Plaintiff,
STATE OF NEVADA, et al, Defendants.
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. This 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 plaintiff Don
M. Savage's application to proceed in forma
pauperis (ECF No. 1) and pro se complaint (ECF
No. 1-1). Having reviewed all documents, the court recommends
that the application to proceed in forma pauperis be
granted, and that this action be dismissed without prejudice,
without leave to amend.
IN FORMA PA UPERIS APPLICATION
on the financial information provided in his application to
proceed in forma pauperis, plaintiff is unable to
pay die filing fee in this matter. (See ECF No. 1.)
The court therefore recommends that the application be
civil rights complaints are governed by 28 U.S.C. §
1915A. Section 1915A 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. § 1915A(b). A complaint is frivolous when
"it lacks an arguable basis in either law or in
fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989). This includes claims based on legal conclusions that
are untenable (e.g., claims against defendants who are immune
from suit or claims of infringement of a legal interest which
clearly does not exist), as well as claims based on fanciful
factual allegations (e.g., delusional scenarios).
Id. at 327-28; see also McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991). Dismissal for failure to
state a claim under § 1915A incorporates the same
standard applied in the context of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), Wilhelm v.
Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012), which
requires dismissal where the complaint fails to "state a
claim for relief that is plausible on its face, "
BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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 must
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). The complaint need not
contain detailed factual allegations, but 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.
Particular care is taken in 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 should be given
leave to amend the complaint and notice of its deficiencies,
unless it is clear mat those deficiencies cannot be cured.
Cato v. United States, 70 F.3d 1103, 1107 (9th Cir.
is an inmate in the custody of the Nevada Department of
Corrections ("NDOC"), and is currently incarcerated
at Warm Springs Correction Center. (ECF No. 1-1 at 1.)
Proceeding pro se and pursuant to 42 U.S.C. §
1983, plaintiff brings civil rights claims against the State
of Nevada, Nevada Governor Brian Sandoval ("Governor
Sandoval"), Douglas County, Nevada ("Douglas
County"), Douglas County District Attorney, and John
Does #1-2. (ECF No. 1-1 at 1-2.)
alleges generally that defendants violated his right to bail.
(Id. at 3-13.) According to plaintiffs complaint, on
May 1, 2014, Las Vegas Metro Police Department arrested and
charged plaintiff with first degree kidnapping,
"possession of ID for false status", assault
without a weapon, and violation of his probation.
(Id.) After contacting a bail bondsman, plaintiff
was advised that he could not be admitted to bail "due
to the retake warrant issued by Douglas County for probation
violation ...." (Id. at 12.) However, plaintiff
maintains that he was not sentenced to probation by Douglas
County or any other jurisdiction at the time of his arrest,
nor ever. (Id.). As a result, plaintiff claims that
he was "falsely imprisoned" for five-hundred and
fifteen days, apparently without receiving a hearing
regarding his bail. (Id. at 4, 6.)
on these allegations, plaintiff claims that defendants
violated his Fourth Amendment right to be free from
unreasonable search and seizure (Count I); his Fifth
Amendment right to a due process hearing regarding his bail
(Count II); his Fourteenth Amendment right to due process and
equal protection under the laws (Count III); and, his Eighth
Amendment right to be free from cruel and unusual punishment
(Count IV). (Id. at 3-12.) He seeks damages and
"presentence confinement credit of (515) days ...."
(Id. at 9.)
being named as defendants, Douglas County and the State of
Nevada are not mentioned in the body of the complaint.
(See Id. at 3-13.) The court now turns to plaintiffs
claims: (1) plaintiffs claims against the State of Nevada;
(2) his claims against Douglas County, Governor Sandoval,
John Doe #1, and John Doe #2; and, (3) his claims against the
The State of Nevada Is Not Amenable to Suit.
caption of his complaint, plaintiff names the State of Nevada
as a defendant. (ECF No. 1-1 at 1.) Section 1983
"provides a federal cause of action against any
person who, acting under color of state law,
deprives another of his federal rights." Conn v.
Gabbert, 526 U.S. 286, 290 (1999) (emphasis added). A
state is not a person for purpose of section 1983. Will
v. Mich. Dep 't of State Police, 491 U.S. 58, 70
(1989). Thus, the court recommends that plaintiffs claim
against the State of Nevada be dismissed because "it
lacks an arguable basis in either law or fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The
court recommends that dismissal be with prejudice because
plaintiff can make no factual or legal amendments that would
expose the State of Nevada to liability under section 1983.
Cato, 70 F.3d at 1107. Plaintiffs claim for damages
against Governor Sandoval in his official capacity should
also be dismissed with prejudice because it is equivalent to
a suit against the State of Nevada itself. Holley v. Cal.
Dep't of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010);
Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir.
Defendants Cannot Be Held Liable Under a Theory of ...