United States District Court, D. Nevada
SAMUEL P. GIZZIE, Plaintiff,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant.
ORDER SCREENING AMENDED COMPLAINT (ECF No.
FERENBACH UNITED STATES MAGISTRATE JUDGE
the Court is pro se Plaintiff Samuel Gizzie's
Amended Complaint. (ECF No. 5). For the reasons stated below,
the Clerk is hereby ordered to file Gizzie's Amended
Complaint (ECF No. 5) so that the case may proceed in the
25, 2018, Gizzie filed an in forma pauperis
application and his initial complaint. (ECF No. 1). The
complaint alleged that four officers from the Las Vegas
Metropolitan Police Department (“LVMPD”)
allegedly harassed Gizzie and a colleague on April 15, 2018,
injuring Gizzie's shoulder in the process. (ECF No. 3 at
2). The Court granted Gizzie's application to proceed
in forma pauperis and dismissed the complaint
without prejudice because Gizzie failed to state a complaint
for which relief may be granted. (Id.). The Court
gave Gizzie leave to amend, and stated that he needed to
include more facts about the encounter and provide more
information about the relief he seeks. (Id. at 3-4).
26, 2018, Gizzie filed an amended complaint with the Court,
seeking a remedy for a violation of his constitutional rights
under 42 U.S.C. § 1983. (ECF No. 5). Gizzie adds Officer
Mazon, the officer who allegedly injured his shoulder as a
defendant, and sues him in his individual capacity. (ECF No.
5 at 2). Gizzie also included an affidavit providing more
detail about the incident. (ECF No. 5-1). Gizzie alleges that
the LVMPD failed “to properly train subordinate
officers” and this negligence resulted in a violation
of his First and Fourth Amendment rights. (ECF No. 5 at 3).
Gizzie alleges that Officer Mazon deprived him of his
constitutional rights by forcing him to leave the sidewalk in
front of the Flamingo Hotel and Casino for no reason, under
the threat of arrest. (ECF No. 5 at 4). Gizzie asks the Court
to issue an injunction requiring the LVMPD to train officers
to de-escalate situations and prevent the police officers
from retaliating against him because of this case.
(Id. at 5). He seeks one million dollars in damages
for psychological and emotional injuries. (Id. at
5). He also asks the Court to impeach and sanction the
involved police officers, claims the officers' bonds in
accordance with NRS 282.060, and charge the officers for crimes
that occurred during the incident. (Id. at 5).
the Court granted Plaintiffs' applications to proceed
in forma pauperis, it must review Plaintiffs'
complaint to determine whether the complaint is frivolous,
malicious, or fails to state a plausible claim. 28 U.S.C.
§ 1915(e)(2)(B). If the Court dismisses a complaint
under § 1915(e), the 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).
Rule of Civil Procedure 8(a) provides that a complaint must
contain “a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.”
The Supreme Court's decision in Ashcroft v.
Iqbal states that to satisfy Rule 8's requirements,
a complaint's allegations must cross “the line from
conceivable to plausible.” 556 U.S. 662, 680 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
initial stage, the Court concludes that Gizzie's
complaint satisfies the Rule 8 requirements. He alleges
enough facts to support a claim that the police possibly
violated his Constitutional rights. Gizzie has a
constitutionally protected right to be in a public space, and
Gizzie alleges the LVMPD violated that right, injuring him in
the process, without just cause. Gizzie also alleges that the
LVMPD searched him without justification. The similar actions
of multiple officers involved in the incident could indicate
that LVMPD has trained, or failed to train, their officers in
a similar manner. Gizzie seeks some remedies that the Court
can grant. The Court could potentially issue an injunction to
prevent irreparable harm and award damages. However, the
Court cannot impeach the police officers, charge them with a
crime, or assign their bonds under NRS 282.060. Under NRS
282.165, only city employees who “regularly handle
public money” are required to secure a bond. Police
officers do not meet this requirement and are not subject to
the bond requirement.
IT IS ORDERED that the Clerk of the Court file the Complaint
(ECF No. 5) and mail a copy of the complaint to Gizzie. The
Clerk of Court is directed to mail a copy of the pro
se packet to Gizzie. Information regarding Summons can
be found on page four of the pro se packet.
to Local Rules IB 3-1, a party may object to reports and
recommendations issued by the Magistrate Judge. Objections
must be in writing and filed with the Clerk of the Court
within fourteen days. (See LR IB 3-1). The Supreme
Court has held that the courts of appeal may determine that
an appeal has been waived due to the failure to file
objections within the specified time. Thomas v. Arn,
474 U.S. 140, 142 (1985). This circuit has also held that (1)
failure to file objections within the specified time and (2)
failure to properly address and brief the objectionable
issues waives the right to appeal the District Court's
order and/or appeal factual issues from the order of the
District Court. Martinez v. Ylst, 951 F.2d 1153,
1157 (9th Cir. 1991); Britt v. Simi Valley United Sch.
Dist., 708 F.2d 452, 454 (9th Cir. 1983).
LSR 2-2, the Plaintiff must immediately file written
notification with the Court of any change of address. The
notification must include proof of service upon each opposing
party of the party's attorney. Failure to comply with
this Rule may result in dismissal of the action.
(See LSR 2-2).