United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 1, 1-1, 3, 4, 5, 5-1, 5-2, 7,
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. § 636(b)(1)(B) and the Local Rules of Practice,
LR 1B 1-4.
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 (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.
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
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).
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.
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).
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.
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).
certified account statement indicates that his average
monthly balance for the last six months was $3.42, and his
average monthly deposits were $61.
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.
MOTIONS FOR LEAVE TO AMEND
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.
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).
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).
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).
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).
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.
42 U.S.C. § 1983
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
The State of Nevada, NDI, and NDI ...