Charles Francis Dowling v. Kevin McMahill, Las Vegas Metropolitan Police Department, Jason Lafreniere, Salie Carter, et al.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 CHARLES FRANCIS DOWLING, Case No. 2:25-cv-00774-CDS-EJY 5 Plaintiff, ORDER 6 v. and 7 KEVIN MCMAHILL, LAS VEGAS REPORT AND RECOMENDATION METROPOLITAN POLICE 8 DEPARTMENT, JASON LAFRENIERE, SALIE CARTER, et al. [9] Defendants. [10] 11 Pending before the Court are Plaintiff’s Application to Proceed in forma pauperis (ECF No. 12 1) and Complaint (ECF No. 1-1). The Application is complete and granted below. 13 I. SCREENING THE COMPLAINT 14 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 15 under 28 U.S.C. § 1915 (e)(2). In screening the complaint, a court must identify cognizable claims 16 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted 17 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2). 18 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 19 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108 , 1112 20 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 21 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 22 U.S. 662 , 678 (2009). The court liberally construes pro se complaints and may only dismiss them 23 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 24 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 25 556 U.S. at 678). 26 In considering whether the complaint is sufficient to state a claim, all allegations of material 27 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 1 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 2 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 3 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 4 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 5 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 6 States, 70 F.3d 1103 , 1106 (9th Cir. 1995). 7 II. SUMMARY OF PLAINTIFF’S COMPLAINT 8 Plaintiff’s Complaint is largely premised on the aftermath from times Plaintiff was sexually 9 assaulted before and during his time in prison. ECF No. 1-1 at 2. While at Clark County Detention 10 Center (“CCDC”), Plaintiff says that he was sexually assaulted on numerous occasions by another 11 inmate. Id. Plaintiff notes that he was 18 years old when sexually assaulted outside of the custody 12 of the state, and 19 years old when sexually assaulted at CCDC. Id. 13 At CCDC, and thus under the supervision of the Las Vegas Metropolitan Police Department 14 (“LVMPD”), Plaintiff maintains that from October 14, 2022 to January 16, 2023, and December 28, 15 2023 to June 2, 2025, LVMPD denied him access to victim advocates and counselors. Id. at 3. 16 Plaintiff submits that he made in-person and electronic requests and filed grievances over the lack 17 of access to victim counselors to assist him in the healing process following reported sexual assaults. 18 Id. Further, Plaintiff says that between October 14, 2022 and April 10, 2023, LVMPD denied his 19 requests and grievances for protection1 and for “record copies.” Id. It is unclear to the Court what 20 “record copies” Plaintiff refers to, or how it factors into his Complaint. LVMPD denied these 21 requests, and in turn, Plaintiff filed grievances for “interference against sanctions and disciplinary 22 proceedings [Plaintiff] received as a public school pupil … for reporting and seeking assistance” 23 following his reporting of certain conduct. Id. 24 Plaintiff also alleges that between May 29, 2023 and June 2, 2025, LVMPD published false 25 information about him, including his age and relationship status, and denied requests to correct the 26 information. Id. at 4. Plaintiff says LVMPD provided inaccurate information to the media. Id. [27] 1 Plaintiff maintains that he reported the errors orally and electronically, but nothing came of the 2 reports. Id. At the same time, Plaintiff alleges that LVMPD published false information about 3 statements he gave to investigators. Id. Plaintiff says LVMPD published false information about 4 his “case intentions” and “twist[ed]” his speech referencing past sexual assault, child molestation, 5 and domestic violence. Id. Plaintiff references “twist[ed]” speech relating to the solicitation of 6 murder, but it is unclear to what he is referencing. Id. Plaintiff says that these errors were made 7 despite the fact that “Kevin McMahill and LVMPD knew of or should’ve known [Plaintiff] was born 8 [on] February 2, 2004,” and that he was a “documented victim of numerous cases of abuse.” Id. 9 Further, Plaintiff alleges that between July 5, 2023 and June 2, 2025, LVMPD made it 10 difficult for Plaintiff to file the above requests and grievances. Id. at 5. Specifically, Plaintiff says 11 that he was directed by LVMPD to make his requests through “inmate paper kites,” but when the 12 paper kites were denied, he was instructed to file the kites electronically. Id. After electronic kites 13 were denied, Plaintiff says LVMPD again directed him to file paper kites. Id. Plaintiff alleges that 14 LVMPD and Nevada Department of Corrections staff have met his requests with delays. Id. Thus, 15 Plaintiff alleges that Sheriff McMahill “knew or should have known” that LVMPD’s policies 16 relating to victim services for incarcerated individuals violates federal and state laws. Id. 17 III. DISCUSSION 18 Plaintiff alleges three claims for relief. First, Plaintiff alleges a violation of the 18 USC § 19 3771 for instances when he was denied access to a victims advocate or counsel and protection. Id. 20 at 3. Second, Plaintiff raises a claim for libel for inaccurate information disseminated by LVMPD. [21] Id. at 4 . Third, Plaintiff asserts an additional claim under 18 USC § 3771 for inadequacies in the 22 request and grievance process at CCDC. Id. Altogether, Plaintiff requests $5 million for medical 23 and psychological healthcare costs, $5 million for fraud and defamation, and $1 million for denial 24 of records and victim rights. Id. at 6 . 25 a. There is No Cause of Action Under 18 U.S.C. § 3771 . 26 Section 3771 of Title 18 of the United States Code provides for the Rights of Crime Victims. [27] 18 U.S.C. § 3771 . The statute explicitly provides that “[n]othing in this chapter shall be construed 1 to any victim or other person for the breach of which the United States or any of its officers or 2 employees could be held liable in damages.” Id. § 3771(d)(6). Likewise, district courts across the 3 Ninth Circuit have found that this statute does not confer a private right of action. E.g. Ryan v. 4 Contreras, Case No. 2:25-cv-0925-DJC-JDP (PS), 2025 WL 1733280 , at *1 (E.D. Cal. June 23, 5 2025), report and recommendation adopted, Case No. 2:25-cv-0925-DJC-JDP (PS), 2025 WL 6 2105941 (E.D. Cal. July 28, 2025) (citing Cobb v. Cnty. of Mohave, Case No. CV-24-08021-PCT7 MTL (JZB), 2025 WL 509248 , at *3, (D. Ariz. Feb. 14, 2025); see also Wagner v. Kallery, Case 8 No. 6:22-CV-00069-AA, 2022 WL 2048601 (D. Or. June 7, 2022) (noting in addition that the statute 9 only applies to victims of federal crimes). Thus, the Court finds that Plaintiff’s first and third claims 10 fail as a matter of law. The Court recommends Plaintiff’s first and third claims be dismissed with 11 prejudice because amendment would be futile. 12 b. Liberally Construed, Plaintiff Fails to State a Claim Under the Eighth Amendment for Failure to Protect. [13] 14 The Court liberally construes Plaintiff’s allegations regarding a failure to protect him from 15 assault as a claim arising under the Eighth Amendment protect claim. The Eighth Amendment 16 establishes that “prison officials have a duty to protect prisoners from violence at the hands of other 17 prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations and quotations omitted). 18 To state a failure to protect claim, Plaintiff must establish (1) the alleged constitutional deprivation 19 must objectively be “sufficiently serious,” and (2) the prison officials were deliberately indifferent 20 to serious threats to an inmate’s safety or health. Id. at 834, 837 . Deliberate indifference means that 21 “the official [knew] of and disregard[ed] an excessive risk to inmate … safety; the official must both 22 be aware of facts from which the inference could be drawn that a substantial risk of serious harm 23 exists, and [the official] must also draw the inference.” Id. at 837 ; see also Castro v. County of Los 24 Angeles, 833 F.3d 1060 (9th Cir. 2016) (explaining that subjective deliberate indifference standard 25 under the Eighth Amendment is well established). 26 Plaintiff alleges that despite requests for protection he was repeatedly sexually assaulted by 27 another prisoner. This allegation is sufficiently serious to implicate Plaintiff’s Eighth Amendment 1 “deliberately indifferent” or facts to support this standard. Because Plaintiff may be able to amend 2 his Complaint to include facts supporting deliberate indifference, the Court dismisses this claim 3 without prejudice and with leave to amend. 4 c. Plaintiff’s Attempt to State a Violation of the Fourteenth Amendment Fails Because Inmates do Not Have Separate Due Process Rights to Administrative Grievance 5 Processes. 6 Plaintiff’s third claim for relief, when broadly construed, allege deficiencies in the 7 administrative grievance system. ECF No. 1-1 at 5. However, there is no separate constitutional 8 right to a specific prison grievance system. E.g. Ramirez v. Galaza, 334 F.3d 850 , 860 (9th Cir. 9 2003); Edwards v. Estill, Case No. 2:19-cv-01268-GMN-VCF, 2020 WL 6286233 , at **7-8 (D. 10 Nev. Oct. 26, 2020). Given the absence of a Fourteenth Amendment right, this claim fails as a matter 11 of law. For this reason, the Court recommends Plaintiff’s due process claim for failure to timely 12 process kites and grievances be dismissed with prejudice. 13 d. Plaintiff Has Not Stated a Monell Claim. 14 To the extent Plaintiff seeks to assert a claim against LVMPD he has not done so. Under 15 Monell v. Dept. of Soc. Servs, 436 U.S. 658, 690-95 (1978), municipalities such as LVMPD can only 16 be liable for the infringement of constitutional rights under limited circumstances not alleged in 17 Plaintiff’s Complaint. A plaintiff asserting a constitutional claim against a municipality like 18 LVMPD under Monell must, at a minimum, allege: (1) the plaintiff had “a constitutional right of 19 which he was deprived; (2) the municipality had a policy; (3) the policy amounts to deliberate 20 indifference to his constitutional right; and (4) the policy is the moving force behind the 21 constitutional violation.” Gordon v. County of Orange, 6 F.4th 961 , 973 (9th Cir. 2021) (internal 22 quotation marks and citation omitted). Further, before a Monell claim will proceed to litigation, a 23 plaintiff must allege one of three liability theories. Thomas v. County of Riverside, 763 F.3d 1167 , 24 1170 (9th Cir. 2014) (per curiam). A local governmental entity like LVMPD may be held liable 25 when it acts “pursuant to an expressly adopted official policy.” Id. (citing Monell, 436 U.S. at 694 ); 26 Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). Alternatively, LVMPD may be held liable for a 27 “longstanding practice or custom” that violates a constitutional right. Thomas, 763 F.3d at 1170 1 committed the constitutional tort was an official with final policy-making authority’ or such an 2 official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” Clouthier 3 v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. Delmore, 979 4 F.2d 1342 , 1346-47 (9th Cir. 1992), overruled on other grounds by Castro, 833 F.3d at 1070 . 5 Here, Plaintiff does not allege any facts supporting the existence of an express policy, a 6 longstanding practice or custom that led to constitutional harms or, alternatively, that the 7 constitutional harm was committed by an official with final policy-making authority or ratified by 8 such an individual. Because this claim is potentially stated in an amended complaint, the Court 9 dismisses Plaintiff’s claims against LVMPD without prejudice and with leave to amend. 10 e. Plaintiff Does Not State a State Law Libel Claim. 11 Under Nevada law, “[t]o state a claim for defamation, Plaintiff must allege (1) a false and 12 defamatory statement by [a] defendant concerning the plaintiff; (2) an unprivileged publication a 13 third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.” 14 Breslaw v. Cooper, Case No. 2:25-cv-00384-APG-DJA, 2025 WL 1906066 , at *3 (D. Nev. July 10, 15 2025) (quoting Rosen v. Tarkanian, 453 P.3d 1220, 1225 (Nev. 2019)). Here, Plaintiff alleges 16 LVMPD “falsified and published background information about [him] including [his] age and 17 relationship status” to the media. ECF No. 1-1 at 4. Plaintiff further alleges LVMPD falsified and 18 published information about his statements to investigators regarding the intentions of his case. Id. 19 What Plaintiff does not make clear is which statements, made by what Defendant, were false and 20 defamatory. For example, Plaintiff’s reference of a solicitation of murder and “twisting of 21 documented speech” does not include when the statement was made, by whom it was made, and 22 facts demonstrating there was no privilege attached to the publication. See Rosen, 453 P.3d at 1225 . 23 As is true for Plaintiff’s Eighth Amendment failure to protect and Monell claims under the 24 U.S. Constitution, Plaintiff may be able to state facts sufficient to support this claim. 25 IV. ORDER 26 IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in forma pauperis (ECF 27 No. 1) is GRANTED. 1 IT IS FURTHER ORDERED that the Clerk of Court is to file Plaintiff’s Complaint (ECF 2 No. 1-1) on the docket. 3 IT IS FURTHER ORDERED that the following claims are dismissed without prejudice and 4 with one opportunity to amend: 5 1. Eighth Amendment Failure to Protect; 6 2. Claim arising under Monell 7 3. Libel under Nevada law. 8 IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint he must 9 do so no later than December 5, 2025. The amended complaint must be titled “AMENDED 10 COMPLAINT” and must be complete—meaning all facts and all claims Plaintiff wishes to assert 11 must be stated in the amended complaint. Plaintiff must identify the individual or entity involved in 12 the wrongdoing and allege facts that show that individual or entity engaged in conduct that supports 13 the claim Plaintiff asserts. Plaintiff should not include in the amended complaint claims that are 14 recommended for dismissal with prejudice below. 15 IT IS FURTHER ORDERED that failure to file an amended complaint in compliance with 16 the terms of this Order will result in a recommendation to dismiss this matter in its entirety. 17 V. RECOMMENDATION 18 IT IS HEREBY RECOMMENDED that Plaintiff’s 18 U.S.C. § 3771 and Fourteenth 19 Amendment claims be dismissed with prejudice. 20 DATED this 5th of November, 2025. [22] 23 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE [24] 25 NOTICE 26 Under Local Rule IB 3-2, any objection to this Report and Recommendation must be in 27 writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court holds 1 within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). The Ninth Circuit also held that 2 (1) failure to file objections within the specified time and (2) failure to properly address and brief 3 the objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 4 issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); 5 Britt v. Simi Valley United Sch. Dist., 708 F.2d 452 , 454 (9th Cir. 1983).