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Sams v. Bader

United States District Court, D. Nevada

April 24, 2018

RICHARD J. SAMS, Plaintiff,
SCOTT BADER et al., Defendants.


          ROBERT C. JONES United States District Judge

         This is 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 motions.


         On 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.

         Officer 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.)


         Federal 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).

         A 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 review).

         “Generally, 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. 2001).

         III. ANALYSIS

         a. Plaintiff's Motions for Entry of Default and Default Judgment

         The 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 of default.

         b. Motion to Dismiss

         i. Plaintiff's ...

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