United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 6, 12
William G. Cobb United States Magistrate Judge
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. Â§ 636(b)(1)(B) and the Local Rules of Practice, LR 1B
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
thorough review, it is recommended that the amended complaint
be dismissed with prejudice, and the motion for injunctive
relief be denied as moot.
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.
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.)
filed the amended complaint on July 1, 2019 (ECF No. 12),
which the court now screens.
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).
General Allegations of the Amended Complaint
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.
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.) ...