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Hickman v. Mead

United States District Court, D. Nevada

August 30, 2019

KENNETH MEAD, et al., Defendants.



         Pending before the Court is the Motion to Dismiss, (ECF No. 23), filed by Defendant Jessica Walsh (“Walsh”). Plaintiff Patrick Hickman (“Plaintiff”)[1] filed a Response, (ECF No. 31), and Walsh did not file a reply.

         Also 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).

         For the reasons addressed below, the Court GRANTS Walsh's Motion to Dismiss and GRANTS Mead's Motion for Judgment on the Pleadings.

         I. BACKGROUND

         This 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In 2015, the Clark County Sheriffs office sent Plaintiff a letter, notifying him that his concealed weapons permit had been revoked in light of the warrant for his arrest.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. ¶ 9).

         Plaintiffs 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.).

         Once in 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. ¶ 13).

         Plaintiffs 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. ¶ 16).

         In 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.).

         At the 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.).

         Plaintiff 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).


         A. 12(b)(6)-Dismissal

         Dismissal 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.” Id.

         “Generally, 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).

         If the 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).

         B. 12(c)-Judgment on the Pleadings

         Federal 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). ...

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