United States District Court, D. Nevada
GEORGE A. TOLIVER, Plaintiff,
LAS VEGAS METROPOLITAN POLICE OFFICER J. SOLES, et al., Defendants.
SCREENING ORDER AND REPORT AND
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
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).
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).
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).
Screening the complaint
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.)
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.
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.).
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.
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)).
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