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Best v. Beresford

United States District Court, D. Nevada

February 27, 2019

BRIAN BEST, Plaintiff
v.
MEREDITH BERESFORD, et. al., Defendants

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NOS. 1, 1-1

          William G. Cobb United States 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 the Local Rules of Practice, LR 1B 1-4.

         Plaintiff 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.

         I. IFP APPLICATION

         A 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).

         The 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.

         “[T]he 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).

         A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; therefore, the application should be granted.

         II. SCREENING

         A. Standard

         “[T]he 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. § 1915(e)(2)(A), (B)(i)-(iii).

         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 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) (citation omitted).

         The 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).

         A 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).

         A 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).

         B. Plaintiff's Complaint

         Plaintiff's 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.

         1. Section 1983 Standard

         42 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)).

         The court will now address the claims asserted in the complaint.

         2. Unlawful Arrest, Prosecution, and/or Detention

         Plaintiff 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.

         Preliminarily, 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.

         The 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.

         The 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.)

         A 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).

         In 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 ...


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