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Savage v. State of Nevada

United States District Court, D. Nevada

March 2, 2018

DON M. SAVAGE, Plaintiff,
STATE OF NEVADA, et al, Defendants.


         This 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.


         Based 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 granted.


         Inmate 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).

         The 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. 1995).


         Plaintiff 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.)

         Plaintiff 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.)

         Based 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.)

         Despite 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 district attorney.

         A. The State of Nevada Is Not Amenable to Suit.

         In the 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. 2007).

         B. Defendants Cannot Be Held Liable Under a Theory of ...

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