Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Best v. Beresford

United States District Court, D. Nevada

July 31, 2019

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

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NOS. 6, 12

          William G. Cobb United States Magistrate Judge

         This Report and Recommendation is made to the Honorable Robert C. Jones, Senior 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.

         Before the court is Plaintiff's amended complaint, which the court now screens under 28 U.S.C. § 1915(e)(2)(B). Plaintiff has also filed a motion for injunctive relief asking the criminal charges against him to be dismissed. (ECF No. 6.)

         After a thorough review, it is recommended that the amended complaint be dismissed with prejudice, and the motion for injunctive relief be denied as moot.

         I. BACKGROUND

         Plaintiff filed his complaint and application to proceed in forma pauperis (IFP). (ECF Nos. 1, 1-1.) On February 27, 2019, the court issued a report and recommendation that Plaintiff's IFP application be granted, and that certain claims be dismissed with prejudice, certain claims be dismissed without prejudice as they have yet to accrue, and that certain claims be dismissed with leave to amend. (ECF No. 3.) In particular, the court recommended that: (1) Plaintiff's Fourth Amendment claims against District Attorney Meredith Beresford be dismissed with prejudice to the extent they rely on conduct undertaken by Beresford that was intimately associated with the judicial phase of the criminal case, but that Plaintiff be given leave to amend to the extent Plaintiff may be able to state a Fourth Amendment claim against Beresford for which she does not have absolute immunity; and, that the Fourth Amendment claims against Judge Tatro be dismissed with prejudice; (2) Plaintiff's witness tampering claim against Detective Hatley be dismissed with leave to amend; (3) Plaintiff's malicious prosecution claims be dismissed without prejudice as they have not yet accrued (but with prejudice to the extent they rely on allegations of conduct by Beresford that were intimately associated with the judicial phase of the criminal process for which she is entitled to absolute immunity); (4) the libel claim be dismissed with prejudice; (5) the abuse of process claim be dismissed with leave to amend; (6) the perjury claim against Beresford be dismissed with prejudice; (7) the negligence claim be dismissed with leave to amend.

         Plaintiff filed objections to the report and recommendation. (ECF Nos. 4, 5.) He also filed a motion for injunctive relief, requesting that the criminal case be dismissed. (ECF No. 6.) On April 2, 2019, District Judge Jones entered an order adopting and accepting the report and recommendation and gave Plaintiff 30 days to file an amended complaint using the section 1983 civil rights complaint form that was mailed to him. (ECF No. 8.) Plaintiff did not timely file an amended complaint, but filed another document, essentially re-asserting his objections to the report and recommendation and arguing the merits of his case. (ECF No. 10.) Judge Jones issued an order on May 28, 2019, stating that if Plaintiff failed to file an amended complaint within 30 days the court could dismiss the case with prejudice for want of prosecution, and directed the Clerk to re-send the form complaint. (ECF No. 11.)

         Plaintiff filed the amended complaint on July 1, 2019 (ECF No. 12), which the court now screens.

         II. SCREENING 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).

         III. DISCUSSION

         A. General Allegations of the Amended Complaint

         The Amended Complaint names as defendants District Attorney Meredith Beresford and Detective Sam Hatley. (ECF No. 12 at 1-2.) The amended complaint includes seven counts asserting claims for violation of the Fourth Amendment, the Eighth Amendment, and the Fourteenth Amendment, as well as libel, witness tampering, abuse of process and negligence.

         Plaintiff alleges that he woke up to a loud knock at his door and looked out his window to see what looked like two police/sheriff officers, one of which was Detective Hatley. Plaintiff got a small flashlight and went to the window to verify it was police, and Hatley shined his flashlight into Plaintiff's eyes and said, "Do you want us to wake up your neighbors with what this is about or do you want to let us in?" (ECF No. 12 at 2.) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.