United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
before the Court is the Motion to Dismiss, (ECF No. 23),
filed by Defendant Jessica Walsh (“Walsh”).
Plaintiff Patrick Hickman
(“Plaintiff”) filed a Response, (ECF No. 31), and
Walsh did not file a reply.
pending before the Court is the Motion for Judgment on the
Pleadings, (ECF No. 84), filed by Defendant Kenneth Mead
(“Mead”). Plaintiff filed a Response, (ECF No.
90), and Mead filed a Reply, (ECF No. 93).
reasons addressed below, the Court GRANTS
Walsh's Motion to Dismiss and GRANTS
Mead's Motion for Judgment on the Pleadings.
case arises from Plaintiff's arrest and subsequent
criminal proceedings in Nevada state court. In May 2013,
Plaintiff issued a check on his closed Wells Fargo bank
account as an installment payment for his pre-existing
mortgage debt. (Am. Compl. ¶ 6, ECF No. 19). Shortly
thereafter, Defendant Kenneth Mead (“Mead”), a
police officer with the Las Vegas Metropolitan Police
Department (“LVMPD”), obtained a federal grand
jury subpoena to investigate Plaintiff's account records.
(Id. ¶¶ 4, 7). Based upon what he
discovered, Mead submitted a declaration in support of a
warrant for Plaintiffs arrest. (Id. ¶ 7). In
September 2014, Defendant Walsh, Chief Deputy District
Attorney, filed a criminal complaint under seal, charging
Plaintiff with violation of NRS 205.0832, Nevada's
consolidated theft statute. (Id. ¶ 8). In 2015,
the Clark County Sheriffs office sent Plaintiff a letter,
notifying him that his concealed weapons permit had been
revoked in light of the warrant for his arrest. (Id.
attorney filed a motion with the Las Vegas Justice Court to
have his warrant recalled, which the presiding judge denied.
(Id. ¶¶ 10-11). Plaintiff alleges that
during the hearing, the Deputy District Attorney Christopher
Hamner represented to the judge that “this is the
sovereign case.” (Id. ¶ 11). Plaintiff
was subsequently handcuffed, taken into custody, and subject
to a $10, 000.00 surety bond. (Id.).
custody, Plaintiff alleges he was booked, searched, injected
with a “TB” shot, and given a mouth swab for his
DNA. (Id. ¶ 12). Plaintiff further alleges he
was questioned about his military background and given no
privacy with respect to using the restroom. (Id.).
According to Plaintiff, he was held overnight despite his
bail being posted the same day he was booked. (Id.).
On August 7, 2015, Plaintiff claims he was released from
custody, given an inoperable card to replace the cash removed
from his person upon booking, and rebuffed with respect to
his request to use the phone for a ride home. (Id.
preliminary hearing, scheduled for August 20, 2015, was
continued upon Plaintiffs motion. (Id. ¶ 14).
During the next seven months, Plaintiff and attorneys for the
State of Nevada moved for several continuances while they
unsuccessfully negotiated a plea agreement. (Id.).
On March 8, 2016, the Justice Court dismissed charges against
Plaintiff and ordered his bail be forfeited. (Id.
February 2018, Plaintiff contacted the Justice Court, and
later the LVMPD, requesting copies of the documents
associated with his now-dismissed criminal case.
(Id. ¶ 17). The Justice Court clerk advised
that the court did not have a copy of Mead's declaration
in support of his warrant application. (Id.). LVMPD
provided Plaintiff's case report but neglected to supply
the Mead declaration. (Id.).
time of Plaintiff's arrest, Plaintiff alleges he was able
to obtain a copy of Mead's declaration without the
associated warrant. (Id.). The declaration allegedly
identifies Plaintiff as a “sovereign, ” who is
associated with other “sovereigns.” (Id.
¶ 18). Plaintiff further alleges Mead applied to several
other arrest warrants for individuals who had tendered checks
on delinquent bank accounts. (Id.).
filed the instant Amended Complaint on August 3, 2018,
bringing the following causes of action against Mead and
Walsh for their role in obtaining charges against and
prosecuting Plaintiff: (1) malicious prosecution under 42
U.S.C. § 1983; (2) section 1983 equal protection; (3)
section 1983 presumption of access; (4) state law malicious
prosecution; and (5) respondeat superior liability against
Mead. (Id. ¶¶ 19-43).
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as factual allegations are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
a district court may not consider any material beyond the
pleadings in a ruling on a Rule 12(b)(6) motion.”
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th Cir. 1990). “However,
material which is properly submitted as part of the complaint
may be considered.” Id. Similarly,
“documents whose contents are alleged in a complaint
and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered in a
Ruling on a Rule 12(b)(6) motion to dismiss. Branch v.
Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion
to dismiss, a court may also take judicial notice of
“matters of public record.” Mack v. S. Bay
Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986).
Otherwise, if a court considers materials outside of the
pleadings, the motion to dismiss is converted into a motion
for summary judgment. Fed.R.Civ.P. 12(d).
court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Syst., Inc., 957
F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the
court should “freely” give leave to amend
“when justice so requires, ” and in the absence
of a reason such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
12(c)-Judgment on the Pleadings
Rule of Civil Procedure 12(c) provides that “[a]fter
the pleadings are closed- but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). Similar to a motion under 12(b)(6), a
12(c) motion requires the court to “accept all factual
allegations in the complaint as true and construe them in the
light most favorable to the non-moving party.”
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.
2009). “Analysis under Rule 12(c) is substantially
identical to analysis under Rule 12(b)(6) because, under both
rules, a court must determine whether the facts alleged in
the complaint, taken as true, entitle the plaintiff to a
legal remedy.” Chavez v. United States, 683
F.3d 1102, 1108 (9th Cir. 2012). ...