United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
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.
BACKGROUND AND PROCEDURAL HISTORY
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.)
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.)
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
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.
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.
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).
First Amended Complaint
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.
Federal Rules of Civil Procedure Rule 17 Inquiry
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.
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)
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”).
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
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
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.
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.
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”).
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.
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