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Pressler v. Nevada Department of Public Safety

United States District Court, D. Nevada

December 12, 2019

TONY ALLEN PRESSLER, Plaintiff,
v.
NEVADA DEPARTMENT OF PUBLIC SAFETY, et al., Defendants.

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NOS. 1, 1-1, 3, 4, 5, 5-1, 5-2, 7, 8

          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.

         Plaintiff, who is an inmate at the Elko County Detention Center (and previously at the Elko County Jail) has filed an application to proceed in forma pauperis (IFP) (ECF No. 1), a pro se complaint (ECF No. 1-1), a motion to amend and proposed amended complaint (ECF Nos. 3, 3-1), a motion for appointment of counsel (ECF No. 4), another motion to amend and proposed (second) amended complaint[1] (ECF Nos. 5, 5-1, 5-2), a motion for request of case status (ECF No. 7), and a request for submission of his motion for appointment of counsel (ECF No. 8).[2]

         First, the court recommends granting the IFP application (ECF No. 1-1) which allows Plaintiff to pay the $350 filing fee over time. Second, the most recent motion for leave to amend (ECF No. 5) should be granted; the court has screened the proposed SAC; and, it is recommended that certain defendants be dismissed with prejudice, and that the remaining claims and parties be dismissed with leave to amend. Third, it is recommended that the motion for case status be denied as moot. Finally, the motion for appointment of counsel should be denied.

         I. IFP APPLICATION

         A person may be granted permission to proceed IFP if the person “submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1).

         The Local Rules of Practice for the District of Nevada provide: “Any person who is unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. The application must be made on the form provided by the court and must include a financial affidavit disclosing the applicant's income, assets, expenses, and liabilities.” LSR 1-1.

         “[T]he supporting affidavits [must] state the facts as to [the] affiant's poverty with some particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).

         An inmate submitting an application to proceed IFP must also “submit a certificate from the institution certifying the amount of funds currently held in the applicant's trust account at the institution and the net deposits in the applicant's account for the six months prior to the date of submission of the application.” LSR 1-2; see also 28 U.S.C. § 1915(a)(2). If the inmate has been at the institution for less than six months, “the certificate must show the account's activity for this shortened period.” LSR 1-2.

         If a prisoner brings a civil action IFP, the prisoner is still required to pay the full amount of the filing fee. 28 U.S.C. § 1915(b)(1). The court will assess and collect (when funds exist) an initial partial filing fee that is calculated as 20 percent of the greater of the average monthly deposits or the average monthly balance for the six-month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1)(A)-(B). After the initial partial filing fee is paid, the prisoner is required to make monthly payments equal to 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). The agency that has custody of the prisoner will forward payments from the prisoner's account to the court clerk each time the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2).

         Plaintiff's certified account statement indicates that his average monthly balance for the last six months was $3.42, and his average monthly deposits were $61.

         Plaintiff's application to proceed IFP should be granted. Plaintiff is required to pay an initial partial filing fee in the amount of $12.20 (20 percent of $61). Thereafter, whenever his prison account exceeds $10, he must make monthly payments in the amount of 20 percent of the preceding month's income credited to his account until the $350 filing fee is paid.

         II. MOTIONS FOR LEAVE TO AMEND

         Plaintiff submitted an original complaint (ECF No. 1-1), and then filed a motion for leave to amend and proposed amended complaint (ECF Nos. 3, 3-1). He then filed a second motion to amend, and proposed (second) amended complaint, the SAC. (ECF Nos. 5, 5-1, 5-2.) Plaintiff's second motion to amend (ECF No. 5) should be granted, and the SAC (ECF Nos. 5-1, 5-2) should be filed. The first motion to amend (ECF No. 3) should then be denied as moot. The court will now screen the SAC, which supersedes the prior pleadings.

         III. SCREENING

         A. Standard

         Under the statute governing IFP proceedings, “the 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).

         In addition, under 28 U.S.C. § 1915A, “[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). In conducting this review, the court “shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2).

         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) and 28 U.S.C. § 1915A(b)(1) track that language. As such, when reviewing the adequacy of a complaint under these statutes, 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). 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).

         B. The SAC

         The SAC names the following defendants: the Elko County District Attorney's Office, Elko County District Attorney Tyler J. Ingram, Elko County Deputy District Attorney Mark S. Mills; the City of Elko; Elko Police Department, Elko Police Department Officers Josh Taylor, Tyler Trouten, S. Daz, Ratliff, McKnown, O'Farrell, Sergeant Dunckhorst, TFO Keema, and Ben Reed Jr.; Elko County; Elko County Sheriff's Department, Elko County Sheriff Aitor Narvaiza, Elko County Sheriff's Department Lieutenant Silva, Elko County Sheriff's Department Sergeant D. Fisher, and Elko County Sheriff's Department Deputies Aspen Carrol, J. Carpenter, James Mather, and Luiz Carlos Nunes; the State of Nevada; Nevada Division of Investigation (NDI) and NDI Detectives Scott Smith and Tim Roabe; the South Fork Tribal Police Department and South Fork Tribal Chief Andrew Neff. Plaintiff's amended complaint includes eleven counts.

         C. 42 U.S.C. § 1983

         Preliminarily, the court notes that 42 U.S.C. § 1983 provides a mechanism for the private enforcement of substantive rights conferred by the Constitution and federal statutes. Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation marks and citation omitted). To state a claim under section 1983, a plaintiff must allege: (1) his or her civil rights were violated, (2) by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988). To adequately plead the section 1983 elements, a complaint must identify what constitutional right each defendant violated, and provide sufficient facts to plausibly support each violation. See e.g., Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (noting defendants must personally participate in misconduct to be liable under section 1983). The "threshold inquiry in a § 1983 suit" requires courts "to 'identify the specific constitutional right' at issue." Manuel v. City of Joliet, 137 S.Ct. 911, 920 (2017) (citing Albright, 510 U.S. at 271). "After pinpointing that right, courts still must determine the elements of, and rules associated with, an action seeking damages for its violation." Id. (citing Carey v. Piphus, 435 U.S. 247, 257-58 (1978)).

         D. The State of Nevada, NDI, and NDI ...


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