United States District Court, D. Nevada
ROGER R. BROWN, Plaintiff,
J. LEVER, #5712, and TALLMAN, #13318, Defendants.
SCREENING ORDER (AM. COMPL. - ECF NO. 8)
A. LEEN, UNITED STATES MAGISTRATE JUDGE
matter is before the court for a screening of pro se
Plaintiff Roger R. Brown's Amended Complaint (ECF No.
This screening is referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules
Background and Procedural History
Brown is a prisoner in the custody of the Nevada Department
of Corrections at the Southern Desert Correctional Center.
This case arises from Mr. Brown's allegations, pursuant
to 28 U.S.C. § 1983, that defendants violated his civil
rights by arresting him without probable cause in March 2015.
He has received permission to proceed in forma
pauperis (“IFP”) pursuant to 28 U.S.C.
§ 1915 and LSR 1-1. See Order (ECF No. 4).
October 2017, Brown filed a Petition for Writ of Mandamus
(ECF No. 10) before the Ninth Circuit Court of Appeals. This
court did not screen the amended pleadings while the petition
was pending. On January 23, 2018, the Ninth Circuit denied
the petition without prejudice to the filing of a new
petition if this court has not screened the complaint within
90 days. See USCA Order (ECF No. 10). The court now
screens Brown's Amended Complaint (ECF No. 8).
Screening the Amended Complaint
granting a prisoner's request to proceed IFP, a federal
court must screen the complaint and any amended complaints
before allowing the case to move forward, issuing summonses,
and requiring a responsive pleading. 28 U.S.C. § 1915;
Jones v. Bock, 549 U.S. 199, 213-14 (2007). The
court must conduct a preliminary screening in any case in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). In its screening, the court must identify
any cognizable claims and dismiss any claims that are
frivolous, malicious, fail to state a claim upon which relief
may be granted or seek monetary relief from a defendant who
is immune from such relief. 42 U.S.C. § 1997e (Prison
Litigation Reform Act of 1995 (PLRA)); 28 U.S.C. §
1915A(b). When a court dismisses a complaint upon the initial
screening, a plaintiff should be given leave to amend the
complaint with directions as to curing its deficiencies,
unless it is clear from the face of the complaint that the
deficiencies could not be cured by amendment. Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995);
see also Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th
Cir. 2000) (en banc). If a plaintiff has paid the initial
partial filing fee and the complaint states a valid claim for
relief, the court will direct the Clerk of the Court to issue
summons to the defendants and instruct the United States
Marshal Service to serve the summons and complaint.
Cf. Fed. R. Civ. P. 4(c)(3); LSR 1-3(c) (requiring
that a prisoner's initial partial filing fee be paid
“before the court will order service of
process”) (emphasis added).
in a pro se complaint are held to less stringent
standards than formal pleading drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Byrd
v. Phoenix Police Dep't, 885 F.3d 639 (9th Cir.
2018). However, pro se litigants “should not
be treated more favorably than parties with attorneys of
record, ” Jacobsen v. Filler, 790 F.2d 1362,
1364 (9th Cir. 1986); rather, they must follow the same rules
of procedure that govern other litigants. Ghazali v.
Moran, 46 F.3d 52, 54 (9th Cir. 1995).
Mr. Brown's Factual Allegations and Claims for
Amended Complaint (ECF No. 8) names officers J. Lever (#5712)
and Tallman (#13318) of the Reno Police Department as
defendants. Mr. Brown alleges the officers violated his civil
rights by arresting him without probable cause. On March 23,
2015, between 3:00 and 4:00 AM, Brown was driving a vehicle
and pulled to the side of the road to speak to a woman. He
proceeded to his destination, the Sienna Casino, and exited
his vehicle. Officer Lever approached Brown and told him to
stand behind his vehicle until officer Tallman arrived. Brown
alleges officer Lever lacked probable cause for the initial
stop. Officer Level purportedly displayed anger and hostility
toward Brown without ever conducting any form of
investigation. Mr. Brown asked officer Lever what was the
probable cause for the stop and was told to “
‘shut the f*** up', you're not an attorney,
just stand behind your vehicle, and wait.” Id.
at 8 (internal punctuation added).
officer Tallman arrived at the Sienna Casino's parking
lot, he immediately put Mr. Brown in handcuffs, placed Brown
in the back of a squad car, and told Brown he was going to
jail for disturbing the peace. Officer Tallman asked no
questions after arriving. Brown pled his innocence to Tallman
during this process but the officer said the charge
“was just disturbing the peace, ” Brown would
“be cited out and to stop crying about it.” Mr.
Brown continued to protest his arrest, but officer Tallman
gave him the “silent treatment.” Tallman then
drove Brown to the Washoe County Detention Facility. As they
approached the facility entrance, Brown noticed an email or
message officer Lever sent to Tallman on the screen of the
squad car's computer telling Tallman to change the charge
to stalking. The stalking charge was later dismissed.
Id. at 11.
Brown alleges defendants' misconduct violated his civil
rights under the Fourth and Fourteenth Amendments as both
officers purportedly acted outside the scope of their
official duties. The officers failed to follow protocol and
gave no explanation for arresting Brown for stalking; thus,
they demonstrated willful and unreasonable conduct. Officer
Lever “plainly and knowingly violated the law when he
pulled over and arrested the Plaintiff on the fictitious
charge of stalking.” Id. at 8. Mr. Brown
alleges Tallman witnessed Lever's misconduct and
Tallman's inaction amount to a failure to protect Brown
from constitutional violations. Id. at 5.
request for relief, Mr. Brown asserts he was embarrassed,
humiliated, and slandered by the officers' misconduct
because his face was shown on Reno mugshots for the
fictitious stalking charge. Brown seeks $150, 000 in monetary
damages and injunctive relief, including the sealing and
expungement of the stalking charge.
reasons discussed below, the court finds that the Amended
Complaint fails to state a claim upon which relief can be
granted. However, because it is possible that Mr. Brown may
be able to adequately allege claims, if sufficient facts
exist, the court will dismiss the Amended Complaint and with
leave to amend if he believes he can cure the deficiencies
noted in this order.
courts are required to dismiss an IFP action if the complaint
fails to state a claim upon which relief may be granted, is
legally “frivolous or malicious, ” or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). In determining whether a
complaint is frivolous and therefore warrants complete or
partial dismissal, a court is not bound to accept without
question truth of plaintiff's allegations. Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Allegations are
frivolous when they are “clearly baseless, ”
id., or lack an arguable “basis in law or
fact.” Andrews v. King, 398 F.3d 1113, 1121
(9th Cir. 2005). Frivolous claims include those 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 that clearly does not
exist), as well as claims based on fanciful factual
allegations (e.g., fantastic or delusional
scenarios). Neitzke v. Williams, 490 U.S. 319,
327-28 (1989); see also McKeever v. Block, 932 F.2d
795, 798 (9th Cir. 1991). Malicious claims are those
“filed with the intention or desire to harm
another.” King, 398 F.3d at 1121;
Washington, 833 F.3d at 1055.
standard for determining whether a plaintiff has failed to
state a claim under §§ 1915 and 1915A is the same
as the standard under Rule 12(b)(6) of the Federal Rules of
Civil Procedurefor failure to state a claim. See
El-Shaddai v. Zamora, 833 F.3d 1036, 1043 (9th Cir.
2016) (“The phrase “fails to state a claim upon
which relief may be granted” from § 1915(g)
purposely “parallels the language of Federal Rule of
Civil Procedure 12(b)(6).”) (quoting Andrews,
398 F.3d at 1121); Washington, 833 F.3d at 1055-56;
Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013).
A district court may dismiss a plaintiff's complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). Review under Rule
12(b)(6) is essentially a ruling on a question of law.
North Star Intern. v. Ariz. Corp. Comm'n, 720
F.2d 578, 580 (9th Cir. 1983). For purposes of a Rule
12(b)(6) review, well-plead factual allegations are accepted
as true, but vague allegations, unreasonable inferences, and
legal conclusions are not entitled to the assumption of
truth. Teixeira v. County of Alameda, 873 F.3d 670,
678 (9th Cir. 2017) (citing Ashcroft v. Iqbal, 556
U.S. 662, 680 (2009); Sanders v. Brown, 504 F.3d
903, 910 (9th Cir. 2007)).
properly pled complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief” as well as the grounds for the court's
jurisdiction and a demand for relief. Fed.R.Civ.P. 8(a). To
avoid dismissal on a Rule 12(b)(6) review, a plaintiff must
allege enough facts to state a claim for relief that is
plausible on its face. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim has facial
plausibility when a plaintiff alleges factual content that
allows the court to make a reasonable inference that a
defendant is liable for the misconduct alleged.
Teixeira, 873 F.3d at 678 (quoting Iqbal,
556 U.S. at 678). This plausibility standard is not a “
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). Although Rule 8(a) does
not require detailed factual allegations, it demands
“more than labels and conclusions.” Id.
at 678. Merely reciting the elements of a cause of action and
providing only conclusory allegations will not be enough to
survive the court's review. Id. at 679-80. The
factual allegations “must plausibly suggest an
entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of
discovery and continued litigation.” Starr v.
Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). A complaint
should be dismissed where the claims have not crossed the
line from conceivable to plausible. Twombly, 550
U.S. at 570.
Analysis of Mr. ...