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Toliver v. Soles

United States District Court, D. Nevada

June 5, 2019

GEORGE A. TOLIVER, Plaintiff,
v.
LAS VEGAS METROPOLITAN POLICE OFFICER J. SOLES, et al., Defendants.

          SCREENING ORDER AND REPORT AND RECOMMENDATION

          C. W. HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.

         Pro se plaintiff George A. Toliver brings this civil-rights case under 42 U.S.C. § 1983 for events that occurred when he was arrested while riding a bicycle and subsequently incarcerated at the Clark County Detention Center and the Hight Desert State Prison for an alleged parole violation. Toliver moves to proceed in forma pauperis. (IFP Application (ECF No. 5).) Toliver submitted the affidavit required by 28 U.S.C. § 1915(a) showing an inability to prepay fees or costs or give security for them. Toliver's request to proceed in forma pauperis therefore will be granted. The court now screens Toliver's complaint (ECF No. 1-1) as required by 28 U.S.C. § 1915(e)(2).

         I. ANALYSIS

         A. Screening standard

         Upon granting a request to proceed in forma pauperis, a court must screen the complaint under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

         In considering whether the complaint is sufficient to state a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the complaint's deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding the complaint's deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         B. Screening the complaint

         Toliver alleges that on July 28, 2017, he was stopped by two Las Vegas Metropolitan Police Department officers for riding his bicycle on the wrong side of the street and for not having a front headlight. (Compl. (ECF No. 1-1) at 3.) Toliver further alleges that in response to questioning by the officers, he stated he was coming from the Fremont Street Experience. (Id.) The officers responded that it was a parole violation for Toliver to be around casinos and alcohol. (Id.) One of the officers asked Toliver “to stand in a straight line and follow his finger from side to side while the other officer ran [Toliver's] name for warrants . . . .” (Id.) Toliver subsequently was arrested for a parole violation and DUI and was taken to the Clark County Detention Center. (Id.)

         Toliver states that after his arrest, he received parole violation documents and a report in which the arresting officer stated that Toliver had admitted to having a can of beer earlier in the day, that he failed the field sobriety test, that his eyes were watery and glassy, and that there was a slight odor of alcohol on Toliver's person. (Id.) Toliver further alleges that he was not given a blood, breath, or urine test and that the officer's statements in the report were false. (Id.) According to Toliver, the officers arrested him in retaliation for past lawsuits he has brought against other police officers. (Id.) Toliver was incarcerated for 64 days. (Id. at 5.) Based on the address on his complaint, it is the court's understanding that Toliver has been released.

         Toliver now brings a civil-rights complaint under 42 U.S.C. § 1983, alleging claims for false arrest (claim one), false imprisonment (claim two), and retaliation (claim three) against defendants Las Vegas Metropolitan Police Department Officer J. Soles #15320, an unnamed Las Vegas Metropolitan Police Department Officer #15319, the Division of Parole and Probation, Parole Officer John D. Mehalko, Parole Sergeant E. Tanner, and Parole Lieutenant Shane L. Brandon. (Id. at 4-6.) He seeks in excess of $5 million in compensatory and punitive damages. (Id. at 9.).

         1. False arrest

         In his first claim, Toliver alleges the police officers pulled him over for riding on the wrong side of the road and for not having headlights, but that they did not write tickets for those offenses and instead arrested him for a parole violation related to drinking beer, even though he was never given a medical test to see if alcohol was in his system. (Id. at 4.) He further alleges parole officer Mehalko consented to the police officers arresting him and was the booking officer for the parole violation. (Id.)

         Section 1983 complaints challenging the constitutionality of an arrest for lack of probable cause may be brought under the Fourth Amendment. “A claim for unlawful arrest is ‘cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification.'” Perez-Morciglio v. Las Vegas Metro. Police Dep't, 820 F.Supp.2d 1111, 1120 (D. Nev. 2011) (citing Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964-65 (9th Cir. 2001)). Probable cause exists if, at the time of the arrest, “under the totality of the circumstances known to the arresting officers (or within the knowledge of the other officers at the scene), a prudent person would believe the suspect had committed a crime.” Perez-Morciglio, 820 F.Supp.2d at 1121 (citing Blankenhorn v. City of Orange, 485 F.3d 463, 471-72 (9th Cir. 2007)).

         Here, Toliver states a colorable false arrest claim against the police officers and parole officer Mehalko. He alleges the officers made false statements in his arrest report regarding intoxication and they arrested him for a parole violation without probable cause or other justification. Liberally construing Toliver's allegations, and accepting the allegations in the complaint as true, a reasonable person would not believe Toliver had violated his parole if the officers falsified the statements in the arrest report. The ...


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