United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 1, 1-1
William G. Cobb United States Magistrate Judge.
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 the Local Rules of Practice, LR 1B
has filed an application to proceed in forma pauperis (IFP)
(ECF No. 1) and pro se complaint (ECF No. 1-1). It is
recommended that the IFP application be granted; the
complaint be filed; and that some claims be dismissed with
prejudice while others be dismissed without prejudice and
with leave to amend.
person may be granted permission to proceed IFP if the person
“submits an affidavit that includes a statement of all
assets such [person] possesses [and] that the person is
unable to pay such fees or give security therefor. Such
affidavit shall state the nature of the action, defense or
appeal and affiant's belief that the person is entitled
to redress.” 28 U.S.C. § 1915(a)(1); Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)
(stating that 28 U.S.C. § 1915 applies to all actions
filed IFP, not just prisoner actions).
Local Rules of Practice for the District of Nevada provide:
“Any person who is unable to prepay the fees in a civil
case may apply to the court for authority to proceed [IFP].
The application must be made on the form provided by the
court and must include a financial affidavit disclosing the
applicant's income, assets, expenses, and
liabilities.” LSR 1-1.
supporting affidavits [must] state the facts as to [the]
affiant's poverty with some particularity, definiteness
and certainty.” U.S. v. McQuade, 647 F.2d 938,
940 (9th Cir. 1981) (quotation marks and citation omitted). A
litigant need not “be absolutely destitute to enjoy the
benefits of the statute.” Adkins v. E.I. Du Pont de
Nemours & Co., 335 U.S. 331, 339 (1948).
review of the application to proceed IFP reveals Plaintiff
cannot pay the filing fee; therefore, the application should
court shall dismiss the case at any time if the court
determines that-- (A) the allegation of poverty is untrue; or
(B) 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. §
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 28 U.S.C. § 1915(e)(2)(B)(ii)
tracks that language. As such, when reviewing the adequacy of
a complaint under this statute, the court applies the same
standard as is applied under Rule 12(b)(6). See e.g.
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)
(“The standard for determining whether a plaintiff has
failed to state a claim upon which relief can be granted
under § 1915(e)(2)(B)(ii) is the same as the Federal
Rule of Civil Procedure 12(b)(6) standard for failure to
state a claim.”). Review under Rule 12(b)(6) is
essentially a ruling on a question of law. See Chappel v.
Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000)
court must accept as true the allegations, construe the
pleadings in the light most favorable to the plaintiff, and
resolve all doubts in the plaintiff's favor. Jenkins
v. McKeithen, 395 U.S. 411, 421 (1969) (citations
omitted). Allegations in pro se complaints are “held to
less stringent standards than formal pleadings drafted by
lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9
(1980) (internal quotation marks and citation omitted).
complaint must contain more than a “formulaic
recitation of the elements of a cause of action, ” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“The pleading must contain something more … than
… a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action.”
Id. (citation and quotation marks omitted). At a
minimum, a plaintiff should include “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570; see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
dismissal should not be without leave to amend unless it is
clear from the face of the complaint that the action is
frivolous and could not be amended to state a federal claim,
or the district court lacks subject matter jurisdiction over
the action. See Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995); O'Loughlin v. Doe, 920
F.2d 614, 616 (9th Cir. 1990).
complaint names as defendants Meredith Beresford of the
Carson City District Attorney's Office and Detective Sam
Hatley of the Carson City Sheriff's Department. (ECF No.
1-1 at 1.) He appears to challenge a criminal investigation,
possibly his arrest, criminal charges made against him, and
his prosecution. It is not entirely clear whether he is
challenging any detention that may have resulted from the
alleged conduct. He alludes to the fact that he eventually
entered a no contest plea to the charges. He asserts claims
for: lack of probable cause that he committed a crime and
that evidence of his innocence was ignored; witness
tampering; malicious prosecution; libel; abuse of process;
judicial misconduct; and perjury. He asks for relief in the
form of monetary damages.
Section 1983 Standard
U.S.C. § 1983 provides a mechanism for the private
enforcement of substantive rights conferred by the
Constitution and federal statutes. Section 1983 “is not
itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere
conferred.” Albright v. Oliver, 510 U.S. 266,
271 (1994) (internal quotation marks and citation omitted).
To state a claim under section 1983, a plaintiff must allege:
(1) his or her civil rights were violated, (2) by a person
acting under the color of state law. West v. Atkins,
487 U.S. 42, 48-49 (1988). To adequately plead the section
1983 elements, a complaint must identify what constitutional
right each defendant violated, and provide sufficient facts
to plausibly support each violation. See e.g., Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002) (noting
defendants must personally participate in misconduct to be
liable under section 1983). The "threshold inquiry in a
§ 1983 suit" requires courts "to 'identify
the specific constitutional right' at issue."
Manuel v. City of Joliet, 137 S.Ct. 911, 920 (2017)
(citing Albright, 510 U.S. at 271). "After
pinpointing that right, courts still must determine the
elements of, and rules associated with, an action seeking
damages for its violation." Id. (citing
Carey v. Piphus, 435 U.S. 247, 257-58 (1978)).
court will now address the claims asserted in the complaint.
Unlawful Arrest, Prosecution, and/or Detention
appears to allege that charges eventually levied against him
were not supported by probable cause, and that as a result
the criminal complaint was false. It is not entirely clear
what the parameters of his claim(s) are, as he references an
arrest, but does not provide adequate facts to determine
whether he is specifically challenging the arrest and/or
whether he was subsequently detained and is challenging that
detention. In addition, he mentions the investigation against
him but does not specifically allege whether and what he is
challenging in terms of the investigation.
the court notes that Plaintiff does not implicate defendant
Detective Hatley in these allegations. Instead, they are
directed at the conduct of the assigned deputy district
attorney Meredith Beresford.
Fourth Amendment protects the "right of people to be
secure in their persons, houses, papers, and effects, against
unreasonable search and seizure." U.S. Const. amend. IV.
"A person is seized" whenever an official restricts
"his freedom of movement" such that he is "not
free to leave." Brendlin v. California, 551
U.S. 249, 254 (2007). The general rule is that "seizures
are 'reasonable' only if based on probable cause to
believe that the individual has committed a crime."
Bailey v. United States, 568 U.S. 186, 192 (2013).
In other words, "[t]he Fourth Amendment prohibits
government officials from detaining a person in the absence
of probable cause." Manuel v. City of Joliet,
III, 137 S.Ct. 911, 918 (2017) (citation omitted).
"That can happen when the police hold someone without
any reason before the formal onset of a criminal
proceeding." Id. "[I]t can also occur when
legal process itself goes wrong-when, for example, a
judge's probable cause determination is predicated solely
on a police officer's false statements."
Id. "If the complaint is that a form of legal
process resulted in pretrial detention unsupported by
probable cause, then the right allegedly infringed lies in
the Fourth Amendment." Id. at 919.
complaint alleges that the allegations of the criminal
complaint were false, as the district attorney wrote the
criminal complaint after she obtained proof of innocence; and
that in court, she complained she was overworked, and did not
weigh the evidence of innocence. (ECF No. 1-1 at 2.) The
complaint goes on to allege that five weeks after the
investigation ended without an arrest, the district attorney
issued three charges unsupported by evidence, and then a
false fourth charge. (Id.) Plaintiff also asserts
that the preliminary hearing conducted by Judge Tatro was a
sham because the judge should have dismissed the case when
the district attorney told him there was no evidence. (ECF
No. 1-1 at 6.)
prosecutor is protected by absolute immunity from liability
for damages under section 1983 "when performing the
traditional functions of an advocate." Kalina v.
Fletcher, 522 U.S. 118, 131 (1997) (citations omitted).
To qualify as advocacy, an act must be "intimately
associated with the judicial phase of the criminal
process[.]" Imbler v. Pachtman, 424 U.S. 409,
430 (1976). In evaluating the applicability of prosecutorial
immunity the court analyzes "the nature of the function
performed[.]" Kalina, 522 U.S. at 127 (citation
omitted). Prosecutors are entitled to qualified immunity,
rather than absolute immunity, when they perform
administrative or investigative functions normally performed
by a detective or police officer. Imbler, 424 U.S.
at 430-31; Kalina, 522 U.S. at 125; Genzler v.
Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).
Imbler, the Supreme Court observed that this
absolute immunity "leave[s] the genuinely wronged
defendant without civil redress against a prosecutor whose
malicious or dishonest action deprives him of liberty."
Imbler, 424 U.S. at 427. This is justified, however,
because "the alternative of qualifying a
prosecutor's immunity would disserve the broader public
interest." Id. "It would prevent the
vigorous and fearless performance of the ...