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Anderson v. United States

United States District Court, D. Nevada

November 8, 2019

KAREEN ANDERSON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER RE COUNTS 1, 4, 5, 6, AND 7, REPORT AND RECOMMENDATION TO DISMISS COUNTS 2 AND 3 WITH PREJUDICE

          ELAYNA J. YOUCHAH UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiff Kareen Anderson's first amended Civil Complaint (EFC No. 25), which responds to the Court's August 9, 2019 Order (ECF No. 24) dismissing Plaintiff's Bivens claim, malicious prosecution claim, and medical and nutritional neglect claim with leave to amend.[1]Hereinafter ECF No. 25 is referred to as the First Amended Complaint. Plaintiff's defamation claim was dismissed with prejudice, and Plaintiff's negligence claim against CoreCivic and the named members of the prison medical staff were allowed to proceed as pled. Plaintiff's in forma pauperis status was granted on June 21, 2019.[2]

         The Court now screens Plaintiff's First Amended Complaint in accordance with the requirements of 28 U.S.C. § 1915(A), and the case law standards discussed in detail in ECF No. 14 at 2:8-3:11.

         FACTS ALLEGED IN THE FIRST AMENDED COMPLAINT

         1. Bivens - Count 1

         Plaintiff alleges that three FBI Special Agents (Ryan Burks, Jonathan Rowe, and Kennedy Weesayma) arrested him on November 1, 2016, before a warrant was issued and before an indictment was returned by the Grand Jury.[3] In support of this claim, Plaintiff attaches FD-302 forms, completed by Special Agents Burke and Weesayma, dated November 2 and 7, 2016, in which they say the following, respectively:

On November 1, 2016, at approximately 10:45 a.m., members of the Las Vegas Safe Streets Gang Unit … arrested Kareen Anderson . . .. Anderson was arrested pursuant to a Federal arrest warrant issued on November 1, 2016 . . .[4]
And, On November 1, 2016, SA Ryan Burke and SA Jonathan Rowe attempted to interview Kareen Anderson … following his arrest.

         Plaintiff also attaches and discusses the docket sheet in his underlying criminal case, No. 2:16-cr-305 (the “Criminal Case”), [5] which the Court reviewed through the Court-sponsored electronic filing system. A review of ECF No. 5 on the criminal case docket sheet shows Minutes of Proceedings that started on November 1, 2016 at 1:16 p.m. and ended at 1:18 p.m., during which time the Grand Jury return was received by the Court followed by the issuance of arrest warrants for Plaintiff and his co-defendants.[6] Exactly when the indictment was filed is unknown at this point, but the Minutes of Proceedings demonstrate that the warrant would not have issued before 1:18 p.m. on November 1.[7]

         Plaintiff argues that (1) a warrant arising from an indictment is not “official until it is stamped by the clerk of the court, ” therefore the arrest was without a warrant in violation of Plaintiff's Fourth Amendment rights, (2) “F.R.Crim.P Rule 4 was violated and a probable cause defense was abandoned and should not be excepted, ” (3) Rule 5 was violated because it took “an entire day” for Plaintiff to appear for his initial appearance, and (4) Rule 9 was violated because there was “no affidavit in support of that [sic] warrant.”[8]

         Plaintiff's arrest warrant was filed in Court on November 3, 2016.[9] The bottom portion titled “Return” was completed by an unknown signatory “for [the] FBI” and shows that “[t]his warrant was received on … 11/01/2016, and the person was arrested on ... 11/02/2016 at … Las Vegas, NV.”[10] The document is then dated 11/02/2016.[11] The U.S. Pretrial Services/U.S. Marshals Service Arrest Intake Form shows the “Date arrested or booked” as November 1, 2016, and that Plaintiff arrived “at USMS 11/2/16 @0915.”[12] Plaintiff states that the “warrant return … Falsely [sic] claims that the execution of the warrant to arrest the plaintiff took place November 2nd, [sic] 2016.”[13]

         Plaintiff claims injuries in the form of his arrest without a warrant and before an indictment was returned (also termed by Plaintiff as “Trespass on constitutional rights”), loss of his daughter to DFS custody, and “[r]ights to due process of F.R.C.P. Rules 3, 4, and 5 disregarded.” Id. at 6:17-7:6.

         2. Malicious Prosecution- Count 2

         The Court previously concluded that Plaintiff exhausted administrative remedies as required before Plaintiff could bring this claim under the Federal Tort Claims Act (“FTCA”).[14] Thus, the only issue before the Court is whether, upon amendment, Plaintiff now states a malicious prosecution claim upon which relief may be granted. The Court applies the law of the State of Nevada when analyzing whether Plaintiff states a cause of action for malicious prosecution.[15]

         To state a claim for malicious prosecution, Plaintiff must allege (1) that the defendant lacked probable cause to initiate a prosecution, (2) malice, (3) the prior criminal proceedings were terminated in his favor, and (4) Plaintiff suffered damages.[16] In his First Amended Complaint, Plaintiff alleges that facts were fabricated or contradictory as stated by law enforcement, Plaintiff had no involvement in acts with which he was charged or on which charges were based, Plaintiff did not violate the law, and the government failed to produce video evidence.[17]

         3. Imputed Negligence - Count 3

         Plaintiff states that he brings this claim against the United States as the only proper defendant in a FTCA action.[18] After stating the law, Plaintiff makes that following assertion:

Pursuant to (Title 42 U.S.C. § 1993).
This Due Process violation & 8th Amendment violations is upon Core Civic, Core Civic's N.S.D.C. facility Doctor Sevedra, and Nurse Ubina. In individual capacity, as issues initiated in pretrial proceedings.
I have completed the grievance system and the response returned from the chief of medical staff. I present this grievance in compliance and satisfaction of TITLE 42 U.S.C. § 1997e. See Exhibit.[19]

(Emphasis in original.) The only other facts set forth by Plaintiff is that this claim “is a complaint on Core Civic, [sic] Doctor Saavedra and Nurse Ubina in their individual and official capacity for neglect, due to [the] protocol of Doctor's policy, that did deprived [sic] me [of my] medical and nutritional needs.”[20]

         4. Medical Neglect - Count 4

         Plaintiff alleges a violation of the Due Process Clause of the Fourteenth Amendment based on what he terms to be “severely infected toenails and . . . toes” that produce “an odor” that Plaintiff did not disclose to the doctor.[21] Plaintiff concludes this cause of action stating that “[h]ad it not been for the neglect of medical treatment with in [sic] these two years, this infection would not be.”[22]

         5. Nutritional Neglect - Count 5

         Plaintiff brings this claim against Dr. Saavedra “because ultimately the decision to from [sic] determining [sic] a food diet is his.”[23] Plaintiff states that his medical files include some notation that his health is dependent upon a meat and dairy free diet; that his kosher food, which is mainly soy based, sometimes contains whey, which he cannot eat and to which he has a “bad reaction”; that despite efforts by the “facility, ” the policy is a medical one ultimately lying with Dr. Saavedra; nothing prevents Dr. Saavedra from ordering a diet that complies with his needs of which the doctor is aware based upon his reaction to minute consumption of foods he cannot eat, but which are “accidentally placed in … [his] Kosher trays numerous times”; and, that “soy is completely discontinued and meat & vegetables dinner [sic] are 6 days a week with one vegan day.”[24] Plaintiff lists his injuries, which include “[n]umerous reactions due to undetectable consumption” which is followed by Plaintiff's citation to the deliberate indifference standard required to state an Eighth Amendment claim.[25]

         6. Medical Neglect - Count 6

         Plaintiff brings this claim against Dr. Saavedra and Nurse Ubina in their individual and official capacities.[26] In sum, Plaintiff claims he had an injured back, asked to be placed in a medical unit because he was unable to protect himself, but was cleared for the general population.[27] His request was neglected and a prison riot broke out resulting in injuries to Plaintiff including being hit in the face and leg with flying objects and being pepper sprayed.[28] Plaintiff says that after the incident he again pleaded with Dr. Saavedra and Nurse Ubina to be in the medical housing unit, but his requests were denied despite Plaintiff's contention that others sought to assist him with this request.[29] Plaintiff goes on to state that pain medication was delayed and, when finally given, he reacted badly to the first prescription and the second was taken during “a shake down” due to “errors in the medical computer”; he has never received blood work for which he was scheduled for nutritional needs or results from a TB test; never received a follow up appointment for injured knees and feet due to the lack of arch supports in shoes; and, there has been “no response to complaint of other issued medication that caused …[Plaintiff] to have rashes and painful reactions.[30] Plaintiff claims his injuries include “[a]gitated and prolonged back injuries … [, l]eg, face and eye injuries[, and] … [p]ainful reaction to finally describe [sic] medication ignored and disregarded.”[31]

         7. Imputed Negligence - Count 7

         Plaintiff's second imputed negligence claim is against CoreCivic as the employer of all who are mentioned in his complaint because, Plaintiff contends, none of the events he complains of would have happened but for their employment by CoreCivic. On this basis, Plaintiff contends, CoreCivic is responsible for the negligent acts of its employees.[32]

         DISCUSSION

         1. Plaintiff states a viable Bivens violation.

         Bivens established that “victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.”[33] A cause of action under Bivens is therefore a judicially created counterpart to civil rights actions under 42 U.S.C. § 1983 for claims against federal officers, who ordinarily do not act under color of state law.

         In Bivens, the Supreme Court “recognized ... an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.”[34] In doing so, the Supreme Court established that “federal courts have the inherent authority to award damages against federal officials to compensate plaintiffs for violations of their constitutional rights.”[35] The Supreme Court recognized that an implied private cause of action arises when law enforcement officials violate a plaintiff's Fourth Amendment right by executing a warrantless search of a plaintiff's home.[36]

         The Fourth Amendment protects “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure.” U.S. Const. amend. IV. An arrest made without a warrant requires probable cause.[37] An arrest made without probable cause or other justification provides the basis for a claim of unlawful arrest under § 1983 as a violation of the Fourth Amendment.[38] “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”[39]

         Here, in Plaintiff's First Amended Complaint he states his Bivens claim arises under 42 U.S.C. § 1983, and specifically alleges a Fourth Amendment violation. Plaintiff also references violations of the Rules of Criminal Procedure 4, 5, and 9.[40] Plaintiff alleges that he was arrested and detained on November 1, 2016, at approximately 10:00 a.m. before a warrant was issued and before an indictment was returned.[41] Plaintiff further alleges that this claim is clearly supported by the FD-302 forms completed by Special Agents Burke and Weesayma, as well as by the docket sheet in his Criminal Case and the U.S. Pretrial Services/U.S. Marshals Service Arrest Intake Form.[42] In fact, each of these documents evidence a substantial question of fact regarding whether, at 10:45 a.m. on November 1, 2016, a warrant had issued or an indictment was returned, thereby supporting, at this stage of proceedings, a colorable claim that Plaintiff was arrested without either document in place.

         Moreover, despite consistent evidence that appears to support the contention that Plaintiff was arrested on November 1, 2016, the return of the warrant states Plaintiff was arrested on November 2, 2016. Plaintiff asserts this false claim, together with the warrant information form indicating the person being arrested is female, are further violations of his Fourth Amendment rights.[43]

         To state a claim under Bivens, a plaintiff must allege that an individual defendant personally committed a specific wrongful act that violated a well-established constitutional right of which a reasonable person would have known. Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987). Plaintiff asserts these elements by discussing and offering documents that strongly suggest that three officers (Burks, Rowe, and Weesayma) arrested him on November 1, 2016, at 10:45 a.m. without a warrant and without the return of an indictment.[44] Again, the docket sheet in Plaintiff's Criminal Case shows that the Grand Jury did not appear before Judge Hoffman until 1:16 p.m. on November 1, 2016. The Intake Form shows that Plaintiff arrived in USMS custody at 9:15 a.m. on November 2, 2016, after being arrested on November 1, 2016, at which time he was transported to the Henderson, Nevada, Detention Center.[45] If Plaintiff was arrested on November 2, 2016, he could not have been in the Henderson, Nevada, Detention Center on November 1, 2016 for the same arrest. Thus, while the return of an indictment and the issuance of a warrant both establish probable cause to arrest, and the issuance of an indictment precludes the need for an affidavit in support of a warrant, Plaintiff's allegations are sufficient to demonstrate that individual defendants, in their individual capacities, may have committed a wrongful act in violation of Plaintiff's Fourth Amendment rights.[46] This is enough at this complaint-screening stage to allow this claim to proceed as stated in the Order below.

         2. Malicio ...


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