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Benson v. State

United States District Court, D. Nevada

March 30, 2018

THOMAS BENSON, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court are Motions to Dismiss filed by various Defendants, a Motion for Default Judgment filed by Plaintiff, and several Motions involving Plaintiff's request for Jury Trial.

         II. BACKGROUND

         a. Factual Allegations[1]

         In the operative Amended Complaint, Plaintiff[2] lists the following Defendants[3]: State of Nevada; County of Clark; City of Las Vegas; Kenneth Mead (“Mead”); Michael Madland; Douglas Gillespie (“Gillespie”); D. King (“King”); Fox 5 News; Las Vegas Metropolitan Police Department (“LVMPD”); United States Federal Bureau of Investigations (“FBI”); B. Vanoosbree (“Vanoosbree”); Clark County Sheriff Department (“CCSD”); S. Jung (“Jung”); United States Department of the Treasury (“Treasury”); FBI Agents Doe 1 through 40 (“FBI Agents”); LVMPD Does 1 through 30; Department of the Treasury Doe 1; Department of the Treasury Doe 2; United States, Inc.; Ewing Brothers Towing Company; Las Vegas Review Journal (“LVRJ”); Eli Segall (“Segall”); and Jason Gunnell (“Gunnell”). His allegations are somewhat difficult to understand, but the Court construes his Complaint to allege the following: On May 11, 2016, Plaintiff was traveling in his private automobile to 5464 Sierra Brook Court. Plaintiff stopped his car and was told by Defendant Madland that there was a “police investigation” in progress and that Plaintiff was to leave. Plaintiff immediately got in his car and started to travel away. After 30 feet of travel, Plaintiff stopped his car and used a phone to video record nonparties Miguel and Miguelito Barraza in hand cuffs in front of a neighbor's house. An unidentified police officer then yelled at Plaintiff to stop his car. An unidentified police officer opened the door to Plaintiff's private property, the car, and then told Plaintiff to exit the car. Plaintiff was then placed in handcuffs and was told he was being detained.

         Plaintiff was then searched without his consent. While the officer was reaching into Plaintiff's pockets, Plaintiff told the officer “I do not give permission to search me, ” but the officer removed Plaintiff's private property including claimant's wallet and pen knife, without Plaintiff's permission. While Plaintiff was being detained, one of the officers spoke to a dispatcher who was audible, and Plaintiff overheard the office say, “He is on the do-not-detain list.” Defendant Madland responded with “I don't care, ” in defiance to orders from his superiors. Plaintiff then observed Madland searching Plaintiff's car. Plaintiff told Madland that Plaintiff did not give permission for his car to be searched. Defendant Mead, acting under color of law, detained Plaintiff and cited him for violating codes of Nevada law, in a citation numbered under the statutory system as 1-05262980 and 1-05262981 (event #160511-3437) as though Plaintiff was subject to Mead's jurisdiction even though Plaintiff did not consent to such jurisdiction and the dispatcher informed Defendant that Plaintiff was on the do not detain list.

         Defendants held Plaintiff in actual imprisonment with his arms bound behind his back for hours on the side of the road. He was imprisoned in full view of the public. Plaintiff signed the citation under duress, due to the fact that Mead was armed with a weapon. Defendant Mead then ordered claimant to appear in an inferior “Justice Court” rather than a Court of Justice as required, as though Defendant Mead has jurisdiction over a people of Nevada such as Plaintiff. Defendant Mead falsely swore in an affidavit that he had probable cause to detain Plaintiff and referred to Plaintiff as a “person” who committed “offenses contrary to law.” Defendants Mead's citation also falsely referred to Plaintiff's private conveyance as a “vehicle, ” falsely claimed that texting while driving is “unlawful, ” and falsely accused claimant of “driving” when in fact, Plaintiff was not engaged in operating a motor vehicle for commercial purposes on the highways in the transportation of passengers, passengers and property, or property or cargo.

         b. Procedural History

         Plaintiff filed the original Complaint on February 10, 2017. (ECF No. 1). Ewing Bros., Inc.., incorrectly named as Ewing Brothers Towing Company, filed a Motion to Dismiss (ECF No. 11) and Motion for More Definite Statement (ECF No. 12) on March 2, 2017. Defendants CCSD, Gillespie, LVMPD, Madland, and Mead (collectively, “Law Enforcement Defendants”) filed a Motion to Dismiss on March 2, 2017. (ECF No. 13). The same day, Plaintiff filed an Amended Complaint. (ECF No. 15). Plaintiff alleges the following causes of action in the Amended Complaint: (1) trespass on case, against Madland, Mead, and Ewing Brothers; (2) trespass on case, against LVRJ and Segall; (3) trespass, against “international terrorist Defendants;” (4) trespass, against international terrorist Defendants, LVRJ, and Segall; and (5) trespass, against Mead, investigator Doe 1, Gunnell, and State of Nevada.

         Segall filed a Motion to Dismiss on March 6, 2017. (ECF No. 21). City of Las Vegas filed a Motion to Dismiss on March 7, 2017. (ECF No. 24). Ewing Bros., Inc.. filed a Motion to Dismiss the Amended Complaint on March 14, 2017. (ECF No. 28). County of Clark and KVVU Broadcasting Corporation, incorrectly named as Fox 5 News, also filed Motions to Dismiss the Amended Complaint on March 14, 2017. (ECF Nos. 29, 31). On March 16, 2017, Law Enforcement Defendants, now including D. King, filed a Motion to Dismiss the Amended Complaint. (ECF No. 34). On March 22, 2017, Plaintiff filed a document that appears to be a Response to the Motions to Dismiss filed by Ewing Brothers, City of Las Vegas, Segall, and additionally addresses “all Motions submitted by the [Defendants].” (ECF No. 40). On March 29, 2017, Law Enforcement Defendants filed Replies. (ECF Nos. 44, 45). On March 31, 2017 and April 3, 2017, Ewing Bros., Inc.., County of Clark, City of Las Vegas, and Segall filed Replies. (ECF Nos. 47, 48, 49, 50, 51, 52). Gunnell filed a Motion to Dismiss the Amended Complaint on April 4, 2017. (ECF No. 53). KVVU Broadcasting Corporation filed a Second Motion to Dismiss on April 5, 2017. (ECF No. 55). LVRJ filed a Motion to Dismiss the Amended Complaint on April 6, 2017. (ECF No. 57). The same day, Plaintiff filed a Motion for Default Judgment against all Defendants, on the basis that their arguments were frivolous. (ECF No. 62). On April 14, 2017, LVRJ and Segall filed a Special Motion to Dismiss pursuant to Nevada Revised Statute (“NRS”) § 41.660. (ECF No. 63). KVVU Broadcasting Corporation, LVRJ, and Segall filed Responses to Plaintiff's Motion for Default Judgment on April 21, 2017. (ECF Nos. 67, 68). Law Enforcement Defendants filed a Response to Plaintiff's Motion for Default Judgment on April 24, 2017. (ECF No. 70). On April 26, 2017, Ewing Brothers filed a Response to Plaintiff's Motion for Default Judgment. (ECF No. 72). City of Las Vegas filed its Response to Plaintiff's Motion for Default Judgment on April 27, 2017. (ECF No. 76). The following day, LVRJ and Segall filed a Reply to their Special Motion to Dismiss. (ECF No. 77).

         On June 20, 2017, Law Enforcement Defendants filed an Emergency Motion to Declare Plaintiff a Vexatious Litigant. (ECF No. 82). Within the following week, KVVU Broadcasting Corporation, LVRJ, Segall, Ewing Bros., Inc.., Inc., Gunnell, and County of Clark filed Joinders to the Motion. (ECF Nos. 84, 86, 89, 91, 95). After numerous other filings by the parties, particularly Plaintiff, Magistrate Judge Koppe entered a Report and Recommendation recommending that Plaintiff be declared a vexatious litigant. (ECF No. 134). The Court adopted the Report and Recommendation and granted Defendants' [82] Motion on November 13, 2017. (ECF No. 135).

         On September 25, 2017, Plaintiff filed a motion for jury trial (ECF No. 112) and the same day filed a document styled as a “writ” granting the request for jury trial (ECF No. 113). Plaintiff later filed an amended “writ” granting the request for jury trial, on September 28, 2017. (ECF No. 118). LVRJ and Segall filed Motion to Strike the writ and amended writ on September 27, 2017 and September 29, 2017 (ECF Nos. 116, 119). Between October 2, 2017 and October 6, 2017, Law Enforcement Defendants, KVVU Broadcasting Corporation, County of Clark, Ewing Bros., Inc.., and Gunnell filed Joinders to the Motions to Strike. (ECF Nos. 120, 122, 123, 124, 125, 126).

         III. LEGAL STANDARD - MOTION TO DISMISS

         An initial pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted). In addition, documents filed by a plaintiff who is proceeding without counsel (as is the case here) must be liberally construed, and a pro se complaint must be “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citations and quotation marks omitted); see also Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014).

         To survive a motion to dismiss, a complaint need not contain “detailed factual allegations, ” but merely asserting “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” is not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In elaborating on the pleading standard described in Twombly and Iqbal, the Ninth Circuit has held that for a complaint to survive dismissal, the plaintiff must allege non-conclusory facts that, together with reasonable inferences from those facts, are “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         IV. DISCUSSION

         a. Ewing Bros., Inc. Motions to Dismiss (ECF Nos. 11, 28)

         The Court may only hear disputes over which it has subject matter jurisdiction. A defendant may move to dismiss a complaint for lack of such jurisdiction. Fed.R.Civ.P. 12(b)(1). If subject matter jurisdiction is challenged, the burden is on the party asserting jurisdiction to establish it. In re Dynamic Random Access Memory Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008) (citations omitted). Dismissal under Rule 12(b)(1) is appropriate if the complaint, considered in its entirety, fails to allege facts on its face that are sufficient to establish subject matter jurisdiction. Id. at 984-85.

         Ewing Bros., Inc. (“Ewing Bros.”)[4] argues that the Amended Complaint did not substantively change the failings of the original Complaint, and refers to its original Motion to Dismiss. In that Motion, Ewing Bros. first argued that Plaintiff failed to effectuate service upon a real entity in the correct manner. Defendant additionally argued that the Court lacks subject matter jurisdiction, as Plaintiff only pleads state law causes of action, and all parties are citizens of Nevada. Ewing Bros. further contends that Plaintiff already filed a federal case involving the same operative facts, and Plaintiff improperly seeks to split his cause of action. In the Motion to Dismiss the Amended Complaint, Ewing Bros. argue that dismissal is warranted since the Complaint is brought by an individual who claims not to belong to any recognized republic or nation and fails to recognize that Nevada law applies to him. In the alternative, Ewing Bros. requests a more definite statement. (ECF No. 12). Defendant argues that the only allegations made against it are vague and conclusory; even if true, all Ewing Bros. did was tow a vehicle at the request of police. Pursuant to NRS § 706.4485, a tow company contacted by law enforcement must comply with the orders and standards given by the agency. NRS § 108.270 allows a towing company to detail a vehicle until the lien against the vehicle is paid. Plaintiff did not exhaust administrative remedied before bringing this action against Ewing Bros.

         Plaintiffs' Response to the Motion (ECF No. 42), was stricken. However, he does include some response in ECF No. 40. He argues that he is not subject to Ewing Bros. jurisdiction, and that counsel for Ewing Bros. is unqualified and lacks comprehension of the law.

         The Court finds that, although Plaintiff's claims against Ewing Bros. are based upon state law, the Court may exercise supplemental jurisdiction. Below, the Court discusses claims based upon federal law. However, the Court agrees with Ewing Bros. that Plaintiff fails to state a claim for relief against them, and offers no legal argument in response to the Motion. Therefore, the Motion to Dismiss (ECF No. 28) is granted. Amendment would be futile, as Plaintiff does not allege any unlawful conduct that would implicate this Defendant. The prior Motions (ECF Nos. 11, 12) are denied as moot.

         b. Law Enforcement Defendants' Motions to Dismiss (ECF Nos. 13, 34)

         The Court will not hear claims that have been already tried and a final judgment entered. “Res judicata, or claim preclusion, prevents the relitigation of a claim previously tried and decided.” Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th Cir. 1992). Res judicata applies only when there is “(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.” Turtle Island Restoration Network v. U.S. Dep't of State, 673 F.3d 914, 917 (9th Cir. 2012) (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003)). Further, the doctrine of “[r]es judicata bars all ...


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