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Brown v. Lever

United States District Court, D. Nevada

April 20, 2018

ROGER R. BROWN, Plaintiff,
v.
J. LEVER, #5712, and TALLMAN, #13318, Defendants.

          SCREENING ORDER (AM. COMPL. - ECF NO. 8)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE

         This matter is before the court for a screening of pro se Plaintiff Roger R. Brown's Amended Complaint (ECF No. 8).[1] 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 of Practice.

         I. Background and Procedural History

         Mr. 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).

         In 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).

         II. Screening the Amended Complaint

         After 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).

         Allegations 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).

         A. Mr. Brown's Factual Allegations and Claims for Relief

         The 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).

         Once 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.

         Mr. 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.

         In his 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.

         For the 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.

         B. Legal Standard

         Federal 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.

         The 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 Procedure[2]for 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)).

         A 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.

         C. Analysis of Mr. ...


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