United States District Court, D. Nevada
RICHARD J. SAMS, Plaintiff,
SCOTT BADER et al., Defendants.
C. JONES United States District Judge
a prisoner civil rights case. Now pending before the Court is
a motion to dismiss, (Mot. Dismiss, ECF No. 11), a motion for
entry of default, (ECF No. 14), and a motion for default
judgment, (ECF No. 16). For the reasons given herein, the
Court grants the motion to dismiss and denies the other
FACTS AND PROCEDURAL HISTORY
January 4, 2017, Plaintiff Richard Sams (also known as
Charles K. Tenborg) was arrested at Rail City Casino by
Sparks Police Department (“SPD”) Officer Scott
Bader for burglary, uttering a forged instrument, and
possession of a forged instrument. (Compl. 4, ECF No. 8;
Police Report, ECF No. 8 at 11.) At the time of his arrest,
Mr. Sams alleges he was in possession of $3, 405 in cash. The
money was seized by SPD, but was not counted in Mr. Sams'
presence. Officer Bader's declaration of probable cause
states that a search incident to arrest showed Mr. Sams was
carrying “approximately $3, 000.” Following his
arrest, $1, 405 was placed in Mr. Sams' inmate account at
the Washoe County Detention Center. In this lawsuit, Mr. Sams
alleges that Officer Bader and/or some other unidentified SPD
employee improperly withheld the additional $2, 000, in
violation of his rights under the Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution.
Bader and SPD have moved to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(6). (Mot. Dismiss, ECF
No. 11.) Mr. Sams has moved for entry of default and default
judgment on the basis of Defendants' alleged failure to
file a timely response to the Complaint. (Mot. Entry Default,
ECF No. 14; Mot. Default J., ECF No. 16.)
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil
Procedure 12(b)(6) mandates that a court dismiss a cause of
action that fails to state a claim upon which relief can be
granted. A motion to dismiss under Rule 12(b)(6) tests the
complaint's sufficiency. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
1986). The court, however, is not required to accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences. See
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).
formulaic recitation of a cause of action with conclusory
allegations is not sufficient; a plaintiff must plead facts
pertaining to his own case making a violation
“plausible, ” not just “possible.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) (“A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”). That is, under the modern interpretation of
Rule 8(a), a plaintiff must not only specify or imply a
cognizable cause of action (Conley review), but also
must allege the facts of his case so that the court can
determine whether the plaintiff has any basis for relief
under the cause of action he has specified or implied,
assuming the facts are as he alleges (Twombly-Iqbal
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule
of Evidence 201, a court may take judicial notice of
“matters of public record.” Mack v. S. Bay
Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.
1986). Otherwise, if the district court considers materials
outside of the pleadings, the motion to dismiss is converted
into a motion for summary judgment. See Arpin v. Santa
Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.
Plaintiff's Motions for Entry of Default and Default
Court will deny these motions because they are based on Mr.
Sams' miscalculation of the deadline for Defendants'
responsive pleading. Mr. Sams alleges that Defendants were
served with the Complaint on January 19, 2018, and did not
file their motion to dismiss until February 12, 2018, more
than twenty-one days later. See Fed. R. Civ. P.
12(a)(1)(A)(i) (providing that a defendant must serve an
answer or other responsive pleading “within 21 days
after being served with the summons and complaint”).
However, the U.S. Marshals' process return, on file with
the Court, clearly shows that the date of service for both
Defendants was January 23, 2018. (ECF No. 10.) The responsive
pleading was thus timely, and there is no basis for an entry
Motion to Dismiss