Hymon v. Officer Rose

[2] UNITED STATES DISTRICT COURT [3] DISTRICT OF NEVADA [4] * * * [5] Roderick L. Hymon, Case No. 2:23-cv-01276-GMN-DJA [6] Plaintiff, 7 Order v. [8] Las Vegas Metropolitan Police Department 9 Officer Rose; District Attorney Glen O’Brien, 10 Defendants. [11] 12 Plaintiff is proceeding pro se under 28 U.S.C. § 1915 and has requested authority to 13 proceed in forma pauperis. (ECF No. 1). Plaintiff also submitted a complaint. (ECF No. 1-1). 14 Because the Court finds that Plaintiff’s application is complete, it grants his application to 15 proceed in forma pauperis. However, because the Court finds that Plaintiff’s complaint lacks 16 sufficient facts, it dismisses his complaint with leave to amend. 17 I. In forma pauperis application. 18 Plaintiff has filed the application required by § 1915(a). (ECF No. 1). Plaintiff has shown 19 an inability to prepay fees and costs or to give security for them. Accordingly, the request to 20 proceed in forma pauperis will be granted pursuant to 28 U.S.C. § 1915 (a). The Court will now 21 review Plaintiff’s complaint. 22 II. Screening standard. 23 Upon granting an application to proceed in forma pauperis, courts additionally screen the 24 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 25 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2). 27 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 1 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 2 F.3d 1103, 1106 (9th Cir. 1995). 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 4 complaint for failure to state a claim upon which relief can be granted. Review under Rule 5 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 6 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 7 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 8 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 9 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 10 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 11 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 12 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, [13] 556 U.S. at 679 . Mere recitals of the elements of a cause of action, supported only by conclusory 14 allegations, do not suffice. Id. at 678 . Secondly, where the claims in the complaint have not 15 crossed the line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 16 U.S. at 570. Allegations of a pro se complaint are held to less stringent standards than formal 17 pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338 , 342 & n.7 (9th Cir. 2010) (finding 18 that liberal construction of pro se pleadings is required after Twombly and Iqbal). 19 Federal courts are courts of limited jurisdiction and possess only that power authorized by 20 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 21 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 22 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 23 federal law creates the cause of action or where the vindication of a right under state law 24 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 25 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 26 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 27 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 1 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 2 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 3 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 4 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 5 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 6 III. Screening the complaint. 7 Plaintiff alleges that Officer Rose falsely arrested him on June 17, 2023 when Plaintiff 8 was on police department property. Plaintiff alleges that he was being stalked by 9 “others/unknown individuals” and thus needed help when Rose arrested him. He further alleges 10 that District Attorney O’Brien filed a false trespass charge against him on July 11, 2023, which 11 gave Officer Rose justification to arrest Plaintiff and search Plaintiff for drugs. Plaintiff brings 12 two causes of action: (1) violation of his Eighth Amendment right to be free from cruel and 13 unusual punishment; and (2) violation of the Due Process and Equal Protection clauses of the 14 Fourteenth Amendment. 15 A. Cruel and unusual punishment. 16 Plaintiff alleges no facts that would support an Eighth Amendment claim or a Fourteenth 17 Amendment cruel and unusual punishment claim. Plaintiff does not allege what conduct 18 occurred, who acted, or when. Plaintiff also fails to allege whether he was a pretrial detainee or 19 an inmate when it happened. The Court thus denies Plaintiff’s Eighth Amendment claim without 20 prejudice and provides the legal standard for these types of claims below in the event Plaintiff 21 amends his complaint. 22 Inmates who sue prison officials for injuries sustained while in custody may do so under 23 the Eighth Amendment’s Cruel and Unusual Punishment Clause, or, if the claim is pursued by a 24 pre-trial detainee who is not convicted, under the Fourteenth Amendment’s Due Process Clause. 25 Bell v. Wolfish, 441 U.S. 520 (1979) (holding that under the Due Process Clause, a pre-trial 26 detainee may not be punished prior to conviction); see Gordon v. County of Orange, 888 F.3d 27 1118, 1124 (9th Cir. 2018) (“medical care claims brought by pretrial detainees…arise under the 1 Unusual Punishment Clause.”) (internal citations and quotations omitted). The Eighth 2 Amendment protects inmates from inhumane methods of punishment and conditions of 3 confinement. See Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. Morgensen, 465 F.3d 4 1041, 1045 (9th Cir. 2006). To constitute cruel and unusual punishment in violation of the Eighth 5 Amendment, prison conditions must involve “the wanton and unnecessary infliction of pain.” 6 Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 7 B. Unlawful arrest. 8 Plaintiff asserts no facts that would constitute a Fourteenth Amendment equal protection 9 claim. The Court thus interprets Plaintiff’s second cause of action as a claim for unlawful arrest 10 under the Fourth Amendment and for violation of the Due Process Clause of the Fourteenth 11 Amendment. However, Plaintiff does not allege sufficient facts to constitute either claim. [12] 42 U.S.C. § 1983 complaints challenging the constitutionality of an arrest for lack of 13 probable cause may be brought under the Fourth Amendment. “A claim for unlawful arrest is 14 ‘cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was 15 without probable cause or other justification.’” Perez-Morciglio v. Las Vegas Metro. Police 16 Dep’t, 820 F. Supp. 2d 1111, 1120 (D. Nev. 2011) (citing Dubner v. City & Cnty. of S.F., 266 17 F.3d 959 , 964–65 (9th Cir. 2001)). Probable cause exists if, at the time of the arrest, “under the 18 totality of the circumstances known to the arresting officers (or within the knowledge of the other 19 officers at the scene), a prudent person would believe the suspect had committed a crime.” Perez20 Morciglio, 820 F. Supp. 2d at 1121 (citing Blankenhorn v. City of Orange, 485 F.3d 463 , 471–72 21 (9th Cir. 2007)). The Fourteenth Amendment’s due process clause requires that before the 22 government deprives a person of life, liberty, or property, it must give the person notice and an 23 opportunity to be heard. See Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008). 24 Here, Plaintiff does not allege sufficient facts to allege unlawful arrest. He alleges that he 25 was not trespassing and that District Attorney O’Brien’s charge of trespass was “false” because 26 Plaintiff was in distress when he was on police department property. As a result, Plaintiff asserts 27 that Officer Rose’s arrest was unlawful. But this does not provide the Court sufficient 1 information to find that Officer Rose lacked probable cause. Indeed, it appears from Plaintiff’s 2 allegations that Officer Rose was acting pursuant to a warrant. 3 Additionally, Plaintiff has not asserted sufficient facts to allege a violation of his 4 Fourteenth Amendment due process rights. Plaintiff asserts that he was arrested. But he does not 5 allege that he was deprived of any process following that arrest. Without more, the Court cannot 6 find a colorable Fourteenth Amendment claim. 7 C. Malicious prosecution. 8 It appears that Plaintiff may be alleging a malicious prosecution claim. However, he does 9 not provide sufficient facts to support it. The Court thus includes the applicable legal standard 10 below to the extent Plaintiff wishes to amend his complaint to include this claim. 11 A claim for malicious prosecution or abuse of process is not generally cognizable under 12 Section 1983 if a process is available within the state judicial system to provide a remedy. Usher 13 v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citations omitted). The exception is 14 “when a malicious prosecution is conducted with the intent to deprive a person of equal 15 protection of the laws or is otherwise intended to subject a person to denial of constitutional 16 rights.” Id. at 562 . (citations omitted). In order to prevail on a Section 1983 claim of malicious 17 prosecution, a plaintiff “must show that the defendants prosecuted [him] with malice and without 18 probable cause, and that they did so for the purpose of denying [him] equal protection or another 19 specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) 20 (citations omitted); see also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); 21 Lacey v. Maricopa County, 693 F.3d 896, 919 (9th Cir. 2012). A malicious prosecution claim 22 may be brought against prosecutors or against the individuals who wrongfully caused the 23 prosecution. Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011). Probable cause is an absolute 24 defense to malicious prosecution. Lassiter v. City of Bremerton, 556 F.3d 1049, 1054-55 (9th 25 Cir. 2009). In order to state a malicious prosecution claim, Plaintiff must show that the prior 26 proceeding was commenced by or at the direction of a defendant and it was: (1) pursued to a legal 27 termination favorable to plaintiff; (2) brought without probable cause; and (3) initiated with 1 termination to be considered “favorable” to the malicious prosecution plaintiff, it must be 2 reflective of the merits of the action and of the plaintiff’s innocence of the charges. Villa v. Cole, [3] 4 Cal.App.4th 1327, 1335 (1992); Awabdy, 368 F.3d at 1068 (“An individual seeking to bring a 4 malicious prosecution claim must generally establish that the prior proceedings terminated in 5 such a manner as to indicate his innocence.”). [6] 7 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 8 pauperis (ECF No. 1) is granted. Plaintiff will not be required to pay an initial installment fee. 9 Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915 , as amended by the 10 Prison Litigation Reform Act. The movant herein is permitted to maintain this action to 11 conclusion without the necessity of prepayment of fees or costs or the giving of security therefor. 12 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915 , as amended by the 13 Prison Litigation Reform Act, the Clark County Detention Center will forward payments from the 14 account of Roderick Lamare Hymon, Inmate No. 631076, to the Clerk of the United States 15 District Court, District of Nevada, 20% of the preceding month’s deposits (in months that the 16 account exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of 17 Court is kindly directed to send a copy of this order to the Finance Division of the Clerk’s Office. 18 The Clerk of Court is also kindly directed to send a copy of this order to the attention of Chief of 19 Inmate Services for the Clark County Detention Center at 330 S. Casino Center Blvd., P.O. 20 Box 43059, Las Vegas, NV 89116. 21 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff’s 22 complaint (ECF No. 1-1) on the docket, but shall not issue summons. 23 IT IS FURTHER ORDERED that Plaintiff’s complaint is dismissed without prejudice 24 and with leave to amend. Plaintiff will have until November 29, 2023 to file an amended 25 complaint to the extent he believes he can correct the noted deficiencies. If Plaintiff chooses to 26 amend the complaint, Plaintiff is informed that the Court cannot refer to a prior pleading (i.e., the 27 original complaint) to make the amended complaint complete. This is because, generally, an 1 amended complaint be complete without reference to any prior pleading. Once a plaintiff files an 2 amended complaint, the original complaint no longer serves any function in the case. Therefore, 3 in an amended complaint, as in an original complaint, each claim and the involvement of each 4 Defendant must be sufficiently alleged. 5 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to mail Plaintiff 6 a copy of this order. [7] 8 DATED: October 30, 2023 [9] DANIEL J. ALBREGTS 10 UNITED STATES MAGISTRATE JUDGE