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Kuzmicki v. Hanrahan

United States District Court, D. Nevada

May 4, 2018

STANLEY KUZMICKI Plaintiff,
v.
SAMANTHA HANRAHAN, et al., Defendant.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and L RIB 1-4. Before the court is Stanley Kuzmicki's first amended complaint (ECF No. 10), and motion for appointment of counsel (ECF No. 11). For the reasons discussed below, the court recommends that plaintiff's first amended complaint be dismissed, as detailed below, and that plaintiff's motion for appointment of counsel be denied.

         I. BACKGROUND AND PROCEDURAL HISTORY

         Stanley Kuzmicki (“plaintiff”) is a resident of Fallon, Nevada. Pursuant to 42 U.S.C. § 1983, plaintiff filed a civil rights complaint (ECF No. 1-1) and an application to proceed in forma pauperis (ECF No. 1) on May 31, 2017. He brought suit against Samantha Hanrahan, David Hanrahan, and Warren Westad for discriminating against him and improperly evicting him from his apartment on the basis of his disability. (ECF No. 1-1 at 3-11.) He also sued Fallon Police Department Sergeant Shelly and Churchill County Deputy District Attorney Brandon Gardner for refusing to bring criminal charges against Samantha Hanrahan, David Hanrahan, and Warren Westad. (ECF No. 1-1 at 13-15.)

         On September 11, 2017, the court issued a Report and Recommendation recommending that plaintiff's application to proceed in forma pauperis be granted and that plaintiff's complaint be dismissed. (ECF No. 3.) Specifically, the court recommended that plaintiff's claims against defendant Brandon Gardner be dismissed, with prejudice, on the basis of prosecutorial immunity. (Id. at 3-4). Additionally, the court found that plaintiff failed to state claims on which relief could be granted against defendants Sergeant Shelly of the Fallon Police Department, Samantha Hanrahan, David Hanrahan, Warren R. Westad. (Id. at 5-7.) The court recommended that any claims asserted against these defendants be dismissed with leave to amend to rectify, if possible, the deficiencies identified. (Id.) Plaintiff was also advised that any allegations, parties, or requests for relief not carried forward into an amended complaint would no longer be before the court. (Id.)

         On October 11, 2017, plaintiff filed a motion for appointment of public defender (ECF No. 5) due to his alleged mental disability and ignorance of his civil rights. The court issued an order adopting the Report and Recommendation in full and denying plaintiff's motion for appointment of a public defender. (ECF No. 8.) The court received plaintiff's amended complaint (ECF No. 10) on November 27, 2017. (ECF No. 10.) Plaintiff filed a motion for public attorney on November 28, 2017. (ECF No. 11.) This report and recommendation follows.

         II. LEGAL STANDARD

         Applications to proceed in forma pauperis are governed by 28 U.S.C. § 1915. Section 1915 provides, in relevant part, that “the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under section 1915 when reviewing the adequacy of a complaint or amended complaint. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

         Under Rule 12(b)(6), the court must dismiss the complaint if it fails to “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Courts accept as true all well-pled factual allegations, set aside legal conclusions, and verify that the factual allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Although the complaint need not contain detailed factual allegations, it must offer more than “a formulaic recitation of the elements of a cause of action” and “raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555.

         The complaint is construed in a light most favorable to the plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court takes particular care when reviewing the pleadings of a pro se party, for a more forgiving standard applies to litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a liberal construction may not be used to supply an essential element of the claim not initially pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If dismissal is appropriate, the pro se plaintiff should be given leave to amend the complaint, and some notice of its deficiencies, unless it is clear that those deficiencies cannot be cured. Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995).

         III. DISCUSSION

         1. First Amended Complaint

         Plaintiff's first amended complaint exceeds one-hundred pages and contains a deluge of factual allegations and documents, the bulk of which is irrelevant minutiae. The court explicitly advised plaintiff that it is his responsibility to provide a “short and plaint statement” of his claims, but the excess of his complaint impermissibly tasks the court with preparing lengthy outlines “to determine who is being sued for what.” McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (“The judge wastes half a day in chambers preparing the ‘short and plaint statement' which Rule 8 obligated plaintiffs to submit. He then must manage the litigation without knowing what claims are made against whom…. [taking] a great deal of time away from more deserving litigants waiting in line.”). Nonetheless, his amended claims against Sergeant Shelly, Samantha Hanrahan, David Hanrahan, and Warren Westad will be considered in turn. (ECF No. 10 at 1); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se complaint “must be held to less stringent standards than formal pleadings drafted by lawyers”) (internal quotations omitted). The court will not expend its resources to summarize plaintiff's allegations in detail.

         A. Federal Rules of Civil Procedure Rule 17 Inquiry

         As a threshold matter, the court will address plaintiff's attempt to put his mental capacity at issue. Under Federal Rules of Civil Procedure Rule 17(c), a court is obliged to “appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such order as it deems proper for the protection of the infant or incompetent person.” Fed.R.Civ.P. 17(c). “A party proceeding pro se in a civil lawsuit is entitled to a competency determination when substantial evidence of incompetence is presented, ” but otherwise the court need not inquire. Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005); Fed.R.Civ.P. 17(c). “[W]hen a substantial question exists regarding the mental competence of a party proceeding pro se, the proper procedure is for the district court to conduct a hearing to determine competence, so a guardian ad litem can be appointed, if necessary.” Allen, 408 F.3d at 1153 (citing Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir.1989)). Litigants may raise a substantial question as to their competency by way of a personal declaration, the declaration of a lay non-party, the declaration or letter of a treating healthcare professional, or medical records. See Allen, 408 F.3d at 1152.

         Nothing in Rule 17 suggests that the mere fact of a mental disability raises a substantial question of mental incompetence. Fed.R.Civ.P. 17; see also United States v. 30.64 Acres of Land, 795 F.2d 796, 805 (9th Cir. 1986) (finding that claim of incompetence made credible not because Social Security Administration report determined plaintiff was disabled, but because the report found plaintiff “totally physically and mentally disabled under SSA regulations”) (emphasis added). Moreover, courts have found that records of mental disability are insufficient when they do not evidence a litigant's inability “to comprehend or competently participate in court proceedings.” See, e.g., Perry v. Unknown Defendant(s), No. CV 6:16-MC-00453-MC, 2017 WL 6940702, at *2 (D. Or. Oct. 27, 2017); Shack v. Knipp, No. 12-CV-794-MMA, 2012 WL 4111652, at *5 (S.D. Cal. Sept. 17, 2012) (medical records reflecting a diagnosis of schizoaffective disorder insufficient to raise substantial question as to capacity to sue, due in part to records being “outdated”); Thompson v. Virginia, No. 11-CV-2818-NLS, 2012 WL 1154473, at *2-3 (S.D. Cal. Apr. 4, 2012) (holding the petitioner failed to submit substantial evidence of incompetence because he did not provide medical records from the relevant time period (i.e. during case at bar) and because nothing indicated that he could not understand or respond to court orders). Instead, the Ninth Circuit appears to require that a litigant “establish that he suffers from a mental illness, the mental illness prevents him from being able to understand and respond to the court's order, and he was still suffering from the illness during the relevant time period.” Allen, 408 F.3d at 1152 (9th Cir. 2005)

         To establish that he has a mental disability, plaintiff attaches an opinion from a Social Security Administration Administrative Law Judge (“ALJ”) finding that he has “major depression with psychosis, anxiety disorder, and personality disorder, nos.” (ECF No. 10-1 at 7.) Regardless of the reasoning expressed therein, the ALJ's opinion is insufficient to raise a substantial question as to plaintiff's mental competency because it was issued in 2003, over fourteen years before plaintiff began the action currently before the court, in 2017. (Id. at 8; see ECF No. 1.) Without more, it is unclear how plaintiff's mental state in 2003 bears upon his ability “to understand and respond to the court's order” today. Allen, 408 F.3d at 1152; Shack, 2012 WL 4111652, at *5 (finding that lawyer's four-year old declaration of legal incompetency “provides little, if any, substantial evidence of Petitioner's competency today”).

         In any event, the ALJ's opinion explicitly notes that plaintiff “has a good vocabulary and is likely above average in intelligence when not impaired by the symptoms of his mental illness.” (ECF No. 10-1 at 5.) Plaintiff's current ability to adequately articulate the factual circumstances of his dispute and respond to court orders is evident in plaintiff's first amended complaint, which responds to the court's request for further information by providing thirty-six handwritten pages of allegations and sixty-eight pages of pertinent documents. (See ECF No. 10, 10-1.) This is a far cry from the “near catatonic state” the ALJ noted when considering plaintiff's mental disability. (ECF No. 10-1 at 6.) Not only is the ALJ's opinion stale for purposes of plaintiff's capacity to sue, but it also suggests that plaintiff is not currently impaired by his mental illness. The court will not order a competency determination in the absence of further evidence.

         Unfortunately, plaintiff fails to provide any further evidence of his mental incompetency. Although he references his mental disability in passing, he takes issue only with the quality of his own self-representation and does not motion for the appointment of a guardian ad litem. (See ECF No. 11) (requesting appointment of counsel because “I'm not qualified to represent myself, ” without further elaboration); (ECF No. 10 at 3) (asking court to excuse his writing as it was the “best I can do to finish on time”). To date, he has notified the court of his change of address, filed all court documents on time, and has even requested an extension of time when he believed it necessary to meet the court imposed filing deadline. (See ECF Nos. 4, 5, 6, 10.) His first amended complaint is as coherent as any given pro se complaint, and, more relevantly, effectively responds to the court's prior order by omitting those claims dismissed with prejudice and expanding upon those dismissed as deficient. Neither his words nor his actions suggest that he is unable to participate in court proceedings.

         In an abundance of caution, the court has considered whether plaintiff's reference to his mental disabilities raises a substantial question as to his mental competency to sue. After careful review, it does not appear that plaintiff is sufficiently impaired by the symptoms of his mental disabilities, if at all, for the court to order a competency hearing or otherwise inquire further. Accordingly, the court proceeds with the assumption that plaintiff is mentally competent to represent himself and proceeds to review his first amended complaint on the merits.

         B. Sergeant Shelly

         The court previously dismissed plaintiff's section 1983 claim against Sergeant Shelly for failing to state a plausible claim upon which relief could be granted. (ECF No. 3 at 3-5; ECF No. 8). The thrust of plaintiff's allegations was that Sergeant Shelly refused to allow plaintiff to file “criminal complaint(s)” and declined to investigate the Hanrahans or his neighbor. (ECF No. 1-1 at 12.) The court advised plaintiff that his claim was implausible on its face as he contradicted his claims by admitting that Shelly listened to his accusations, provided suggestions on how to seek redress for the alleged harms, and authored police reports in response to those interactions. (ECF No. 3 at 4-5.) Furthermore, the court noted that plaintiff failed to identify a constitutional or federal basis for holding Shelly liable, and did not identify the relief sought. (Id.) Plaintiff now clarifies that he is suing under the Fourteenth Amendment Due Process Clause and Equal Protection Clause.

         The Supreme Court has made clear that the Fourteenth Amendment Due Process Clause does not “require[] the State to protect the life, liberty, and property of its citizens against invasion by private actors.” DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 196 (1989) (rejecting argument that police department created “special relationship” with child by proclaiming its intention to protect the child from father's abuse). Rather, “[t]he Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security.” Id.; see Rossi v. City of Chicago, 790 F.3d 729, 735 (7th Cir. 2015) (holding that a citizen “does not have a constitutional right to have the police investigate his case at all, still less to do so to his level of satisfaction”).

         Plaintiff fails to allege any new information that could expose Sergeant Shelly to liability under the Fourteenth Amendment Due Process Clause. Instead, he recounts with excruciating tedium the extent of his interactions with Sergeant Shelly. (ECF No. 10 at 24-34.) His claims against Shelly continue to be limited to Shelly's apparent rudeness, his refusal to allow plaintiff to file “criminal complaints” regarding plaintiff's various tenancy disputes, and, finally, his failure to charge the Hanrahans for allegedly forging plaintiff's signature on a move-out inspection report. (Id.). However, neither the Due Process Clause nor any other portion of the constitution mandate that Sergeant Shelly treat plaintiff kindly. See Liriano v. ICE/DHS, 827 F.Supp.2d 264, 271 (S.D.N.Y. 2011) (when uttered by a law enforcement agent, “verbal harassment or profanity alone … does not constitute the violation of any federally protected right”). Furthermore, Sergeant Shelly, as a constitutional matter, was not obliged to respond to every single allegation he received involving plaintiff's tenancy disputes. DeShaney, 489 U.S. at 196. Nor was he required to do anything more than listen to plaintiff's accusations and determine the propriety of further action. Rossi, 790 F.3d at 735; Gini v. Las Vegas Metro. Police Dep't, 40 F.3d 1041, 1045 (9th Cir. 1994) (Police officers do not have an affirmative duty to investigate crimes in a particular manner). Plaintiff's factual allegations simply do not state a cognizable claim under the Due Process Clause. 28 U.S.C. § 1915(e)(2)(B)(ii).

         With respect to plaintiff's equal protection claim, the Ninth Circuit has acknowledge that “there is no right to state protection against madmen or criminals, but ‘[t]here is a constitutional right ... to have police services administered in a nondiscriminatory manner-a right that is violated when a state actor denies such protection to disfavored persons.'” Elliot-Park v. Manglona, 592 F.3d 1003, 1006 (9th Cir. 2010) (quoting Estate of Macias v. Ihde, 2019 F.3d 1018, 1028 (9th Cir. 2000)); DeShaney, 489 U.S. 193 n.3 (“The ...


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