Cheley Len Hokanson v. Brian Cavanaugh, et al.

Opinion

1 2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

4 CHELEY LEN HOKANSON, Case No. 3:24-cv-490-ART-CSD 5

6 Plaintiff, ORDER v. (ECF Nos. 16, 17, 19, 22, 23, 7 24/25/26, 27, 28, 29/30, 32, 38) 8 BRIAN CAVANAUGH, et al.,

9 Defendants.

11 Pro se Plaintiff Cheley Len Hokanson’s daughter tragically lost her life in a 12 motor vehicle accident. Ms. Hokanson sues the other party to the crash and law 13 enforcement officers for alleged misconduct in their response. (ECF No. 11.) 14 Magistrate Judge Craig Denney recommends allowing to proceed some of Ms. 15 Hokanson’s claims for unlawful seizure and retention of her property in violation 16 of the Fourth Amendment and the parallel provision of the state constitution. 17 (ECF No. 16.) Ms. Hokanson has submitted both an objection to Judge Denney’s 18 Report and Recommendation (“R&R”) and a motion for leave to file a Second 19 Amended Complaint (“SAC”). The Court partially adopts the R&R, filing the FAC 20 and denying Ms. Hokanson’s motion for leave to file a SAC as moot with leave to 21 refile. The Court denies Defendants’ motion to dismiss (ECF No. 32), which 22 renders moot Ms. Hokanson’s motion for sur-reply in opposition to that motion. 23 (ECF No. 38.) Finally, the Court grants Ms. Hokanson’s motion for leave to file a 24 late notice of a related state proceeding. (ECF No. 23.) 25 I. Allegations in the FAC 26 Ms. Hokanson alleges the following in her FAC. (ECF No. 11.) Although these 27 are only allegations at this stage in the proceedings, they are accepted as true for 28 1 the purpose of screening her complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 2 (2009). 3 On October 23, 2022, Ms. Hokanson’s daughter Jessica Len Gomez was 4 tragically killed in a crash on U.S. Route 50. The other party to the accident was 5 Jesus Augustin Mariezcurenna, who was driving a drilling rig. 6 Officers from the Nevada Highway Patrol and the Churchill County Sheriff’s 7 Office arrived at the scene. Several NHP officers investigated Ms. Gomez’s vehicle 8 for marijuana and alcohol, and checked the condition of her tires. NHP officers 9 took personal property from her daughter’s vehicle, threw some of it on the 10 highway, misappropriated some of the rest, and failed to document what was at 11 the scene. 12 When Ms. Hokanson arrived, officers physically blocked her from the scene 13 with their police cruisers. While Ms. Hokanson was reasonably distraught, 14 officers’ subsequent reports about the encounter characterized her as a “mental 15 subject” and erroneously stated that she drove through a police roadblock to get 16 there. Officer Marenco, who was “acting under the supervision and with the 17 approval of Defendant Sgt. Cavanaugh,” approached Ms. Hokanson’s vehicle and 18 asked for her firearm while Sgt. Cavanaugh and another officer “took cover 19 behind a patrol vehicle.” Feeling like she had no choice, Ms. Hokanson turned 20 over her gun. The officers had no warrant for it. Sgt. Cavanaugh said that if 21 anyone asked, NHP was not involved in the seizure and it was county Captain 22 “Hollister’s choice.” Officers failed to file some of the required reports and, in the 23 ones that were filed, recorded the serial number of her gun incorrectly. Based on 24 the incorrect serial number, they then claimed that a prolonged investigation with 25 the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) was 26 required. The defendants retained the gun for fourteen months. It was returned 27 on December 5, 2023, after the ATF found no issues. 28 1 At the scene of the crash, NHP Sgt. Cavanaugh called Mr. Mariezcurenna by 2 a nickname, knew the name of his business, and displayed this familiarity to 3 other officers. Despite body-warn camera footage showing that Mr. 4 Mariezcurenna’s drilling rig had seven mismatched tires, officers did not inspect 5 his tires. Mr. Mariezcurenna subsequently tested positive for THC, was cited for 6 a federal tire-separation violation in connection with the accident, and had and 7 continued to incur a history of dangerous moving violations. Ms. Hokanson 8 alleges that the NHP and the county kept irregular reports of the crash and 9 citation records, and overlooked issues with his rig’s license plates. NHP Officer 10 Marenco told the press that Ms. Hokanson’s daughter was “a local off the rez,” 11 while Mr. Mariezcurenna had “half a dozen of these rigs running up and down 12 the highway,” suggesting that he was a prominent business owner. 13 Mr. Mariezcurenna told Ms. Hokanson that he would pay for her daughter’s 14 funeral. Two weeks later, he claimed not to know her or know her daughter’s 15 name, and upon being reminded said “I told you people to call the church!” before 16 hanging up the phone. 17 When Ms. Hokanson attempted to obtain records regarding the crash, 18 supervisors at the NHP told her she was abusing the records division staff, that 19 her only intent was to disparage the NHP, and that it would be a “category E 20 felony” for her to record a call with them. She says that she filed a formal 21 complaint with the Nevada State Police Office of Professional Responsibility 22 (“OPR”), which opened an internal affairs investigation naming Sgt. Cavanaugh 23 as one of the subjects. After Sgt. Cavanaugh was promoted to lieutenant 24 commander, giving him authority over the OPR, the investigation was closed. 25 Ms. Hokanson sues Mr. Mariezcurenna and a host of NHP and county officers, 26 alleging unlawful seizure under the Fourth Amendment, deprivation of property 27 without due process under the Fourteenth Amendment, unreasonable seizure in 28 1 violation of Article 1 Section 18 of the Nevada Constitution, civil conspiracy, 2 conversion, intentional infliction of emotional distress, negligence and gross 3 negligence, and denial of equal protection under the Fourteenth Amendment. 4 The many pending motions in this case can be divided into four groups. 5 The preliminary question is whether NHP defendants’ motion to dismiss should 6 be granted, mooting all other pending matters in this case. If it is not granted, 7 then the Court will proceed to adjudicate all other motions. The second group of 8 motions relates to the R&R screening the FAC and Ms. Hokanson’s objections to 9 it. The third group of motions relate to the SAC and opposition to it. Fourth and 10 finally, Ms. Hokanson has filed one miscellaneous motion for leave to file late 11 notice of a related state proceeding. 12 II. Motion to Dismiss 13 It is an undisputed fact that NHP defendants have not been served. Federal 14 Rule of Civil Procedure 4(m) provides that an action against a defendant “must” 15 be dismissed without prejudice if a defendant is not served within 90 days after 16 the complaint is filed. “In cases where a court is required to screen a complaint 17 before it may be served, it is generally accepted that the service deadline 18 prescribed by Rule 4(m) does not begin to run until the date the court authorizes 19 service of the complaint.” Grant v. Borges, No. EDCV210899VBFPVC, 2022 WL 20 19300690, at *7–8 (C.D. Cal. Dec. 12, 2022) (collecting cases), report and 21 recommendation adopted, No. EDCV2100899VBFPVC, 2023 WL 2699968 (C.D. 22 Cal. Mar. 28, 2023; see Robinson v. Clipse, 602 F.3d 605, 609 (4th Cir. 2010); 23 Urrutia v. Harrisburg Cnty. Police Dep't, 91 F.3d 451, 459 (3d Cir. 1996). Typically, 24 these are cases where the plaintiff proceeds in forma pauperis. Id; see 28 U.S.C. 25 1915(e)(2)(B)(ii). 26 NHP Defendants argue that because the First Amended Complaint was filed 27 on September 15, 2025, under Plaintiff had until December 14, 2025 to serve. 28 1 (ECF No. 32.) NHP Defendants move to dismiss for failure to effect service. (Id.) 2 Plaintiff responds in relevant part that the FAC has not been screened, the Court 3 has not yet ordered service, and the 90-day clock has not begun to run. (ECF No. 4 36.) 5 Because service is not overdue, the Court denies the motion to dismiss. 6 The 90-day clock for service of process had not even begun to run at the time 7 when NHP Defendants moved to dismiss. Ms. Hokanson is proceeding in forma 8 pauperis, she must wait until the Court screens her complaint before it may be 9 served, and the Court had not authorized service of the complaint until issuance 10 of this order. NHP Defendants rely on Carrasco v. U.S. Gov't, No. C06-5084RJB, 11 2007 WL 764712 (W.D. Wash. Mar. 9, 2007), aff'd sub nom. Carrasco v. United 12 States, 292 F. App'x 610 (9th Cir. 2008), in which a district court dismissed the 13 case where an in forma pauperis plaintiff failed to serve the defendants. That case 14 is distinguishable because that plaintiff had been ordered to serve the defendants 15 and had not done so. Id. at *1. Here, to the contrary, Judge Denney told Ms. 16 Hokanson that “service must be completed within 90 days of the date of [] any 17 order adopting this Report and Recommendation” (ECF No. 16 at 17), and the 18 Court issued no such order until this one. 19 Having denied the motion to dismiss, the Court will address the remaining 20 pending motions. 21 III. Screening the FAC 22 Because Ms. Hokanson is proceeding in forma pauperis, her complaint 23 must be screened. The R&R recommends that certain claims proceed, namely, 24 the claims that NHP Officer Marenco unlawfully seized her gun and that county 25 Officers Davis, Kufalk, and Maynez unlawfully retained it in violation of the 26 Fourth Amendment and the Nevada State Constitution. The R&R recommends 27 dismissing all other claims for pleading omissions or lack of jurisdiction. Ms. 28 1 Hokanson has filed a host of motions in response to the R&R. (ECF Nos. 17/19, 2 22, 24/25/26.) These include duplicate motions to extend the time to object (ECF 3 Nos. 17, 19), a partial objection (ECF No. 21), a preliminary motion to strike that 4 partial objection (ECF No. 22), and a motion for leave to file a corrected objection 5 with a finalized request to strike the partial objection (ECF No. 24/25/26). In 6 light of Plaintiff’s pro se status, the Court grants her motions to extend time and 7 motions to strike related to the R&R, and now considers the R&R in view of her 8 objection at ECF No. 24-1/25-1/26-1. 9 A. Legal Standard 10 According to the statute governing proceedings in forma pauperis proceedings, 11 “the court shall dismiss the case at any time if the court determines that … the 12 action… fails to state a claim upon which relief may be granted.” 28 U.S.C. § 13 1915(e)(2)(B)(ii). When reviewing the adequacy of a complaint under this statute, 14 the court applies the same standard as is applied under Federal Rule of Civil 15 Procedure 12(b)(6). See, e.g., Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 16 2012). Under this standard, a district court must accept as true all well-pleaded 17 factual allegations in the complaint and determine whether those factual 18 allegations state a plausible claim for relief. Iqbal, 556 U.S. at 678–79. 19 “[F]ormulaic recitation of the elements of a cause of action” does not suffice to 20 “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 21 550 U.S. 544, 555 (2007). Allegations in pro se complaints are “held to less 22 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 23 449 U.S. 5, 9 (1980) (internal quotation marks and citation omitted). 24 This Court now reviews Judge Denney’s R&R under the Federal Magistrates 25 Act, which provides that a court “may accept, reject, or modify, in whole or in 26 part, the findings or recommendations made by [a] magistrate judge.” 28 U.S.C. 27 § 636(b)(1). Where a party timely objects to a magistrate judge's report and 28 1 recommendation, then the court is required to “make a de novo determination of 2 those portions of the [report and recommendation] to which objection is made.” 3 Id. Since both the statute and Supreme Court precedent indicate that review 4 should be made with respect to specific issues placed into controversy by the 5 objection, district courts have concluded that only the objected-to portions of the 6 R&R must be reviewed. See, e.g., Fuller v. Lopez, No. CV1905818PHXDWLCDB, 7 2021 WL 321234, at *3 (D. Ariz. Feb. 1, 2021) (citing S. Gensler, 2 Federal Rules 8 of Civil Procedure, Rules and Commentary, Rule 72, at 422 (2018)). 9 A court is not required to conduct “any review at all . . . of any issue that is 10 not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). The 11 district court may still review the portions of the R&R not subject to an objection 12 if it chooses, as nothing “preclude[s] further review by the district judge, sua 13 sponte or at the request of a party, under a de novo or any other standard.” Id. 14 at 154. 15 B. Discussion 16 In her final objection at ECF No. 24-1/25-1/26-1, Ms. Hokanson objects to 17 two portions of the R&R. First, she argues that the FAC sufficiently states an 18 unlawful seizure claim in Count 1 and 3 against Sgt. Cavanaugh because it 19 pleads facts showing that he was aware of and did not prevent Officer Marenco 20 from violating her rights. Ms. Hokanson’s interpretation of the facts alleged in the 21 complaint is persuasive, and her Fourth Amendment claim against Sgt. 22 Cavanaugh will be allowed to proceed. On the same theory, the Court will also 23 allow her Count 4 claim of a civil conspiracy between Sgt. Cavanaugh and Officer 24 Marenco to proceed. Second, Ms. Hokanson argues that the FAC’s sufficiently 25 pleads in Count 8 that the defendants racially discriminated against her in 26 violation of her right to equal protection. Following the R&R, this claim will be 27 dismissed with leave to amend. 28 1 1. Unlawful Seizure and Retention 2 A defendant is liable for constitutional violations under Section 1983 “only 3 upon a showing of personal participation by the defendant.” Taylor v. List, 880 4 F.2d 1040, 1045 (9th Cir. 1989). “A supervisor is only liable for constitutional 5 violations of his subordinates if the supervisor participated in or directed the 6 violations, or knew of the violations and failed to act to prevent them. There is no 7 respondeat superior liability under [§] 1983.” Id. Ms. Hokanson must therefore 8 allege that Sgt. Cavanaugh participated in, directed, or acquiesced to an 9 unreasonable seizure in violation of the Fourth Amendment. A seizure includes 10 “a meaningful interference with an individual’s possessory interest in [his] 11 property.” Brewster v. Beck, 859 F.3d 1194, 1196 (9th Cir. 2017) (citation and 12 quotation marks omitted); see also United States v. Jacobsen, 466 U.S. 109, 113 13 (1984). Subject to “only a few specifically established and well delineated 14 exceptions,” a seizure conducted without a warrant is unreasonable. Brewster, 15 859 F.3d at 1196 (citation omitted). The burden is on the Government to persuade 16 the district court that a seizure comes under one of the exceptions to the warrant 17 requirement. United States v. Huguez–Ibarra, 954 F.2d 546, 551 (9th Cir.1992). 18 The R&R recommends dismissing the Fourth Amendment unlawful seizure 19 claim against Sgt. Cavanaugh in Count 1. The R&R states that Ms. Hokanson 20 has not alleged that Sgt. Cavanaugh personally seized the firearm but rather 21 makes a “conclusory statement” that Sgt. Cavanaugh was supervising Marenco 22 and approved of his actions. 23 Ms. Hokanson objects that she has pleaded facts showing Sgt. Cavanaugh’s 24 direct involvement. First, she alleges in the FAC that Sgt. Cavanaugh took cover 25 behind a patrol vehicle when Officer Marenco took the firearm because he was 26 aware of what Officer Marenco was doing and believed that there was an element 27 of risk. Second, she alleges that Sgt. Cavanaugh stated that if anyone asked, NHP 28 1 was not involved with the seizure of the firearm and it was county Captain 2 “Hollister’s choice” to seize it. 3 Ms. Hokanson has stated a claim sufficient to hold Sgt. Cavanaugh liable for 4 his involvement in the seizure of the firearm. The facts alleged in the FAC indicate 5 that Sgt. Cavanaugh personally participated in the seizure because he knew of 6 Officer Marenco’s actions and failed to prevent them. Sgt. Cavanagh’s tactical 7 cover behind a patrol vehicle reflects his awareness that Officer Marenco seized 8 the firearm. His statement that it was not NHP’s choice, but rather the County’s 9 choice to seize the firearm, suggests that he was also aware that the seizure of 10 the firearm was conducted without a warrant and unreasonable. Regardless, Sgt. 11 Cavanaugh did not act to prevent Officer Marenco from seizing the firearm. 12 Pleading that Sgt. Cavanaugh knew of his subordinate’s unconstitutional act and 13 failed to prevent it is enough to plead his personal involvement. Taylor, 880 F.2d 14 at 1045. 15 2. Equal Protection Claim Against Sgt. Cavanaugh and Officers 16 Marenco, Bonds, and Nivarel 17 The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o 18 state shall ... deny to any person within its jurisdiction the equal protection of 19 the laws.” Equal protection is “essentially a direction that all persons similarly 20 situated be treated alike.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 21 432, 439 (1985). As noted in the R&R, to state an equal protection violation, a 22 plaintiff must “plead facts that plausibly show that a defendant’s conduct had a 23 discriminatory effect and was motivated by a discriminatory purpose.” 24 Rosenbaum v. City & Cnty. of San Francisco, 484 F.3d 1142, 1153 (9th Cir. 2007). 25 As with other Section 1983 claims, there is no vicarious liability for an equal 26 protection violation. See Taylor, 880 F.2d at 1045. A “supervisor's mere 27 awareness of the discriminatory effects of his or her actions or inaction does not 28 1 state a claim of unconstitutional discrimination.” Starr v. Baca, 652 F.3d 1202, 2 1206 (9th Cir. 2011). 3 The R&R recommends dismissal of the Fourteenth Amendment equal 4 protection claim in Count 8 because Ms. Hokanson has not pleaded that officers’ 5 actions had a discriminatory effect or discriminatory purpose. While Ms. 6 Hokanson alleges that officials treated the investigation into her daughter’s death 7 differently from investigations involving other similarly situated individuals, the 8 FAC does not allege how or why. Her claim of discriminatory intent “appears to 9 be based on a single comment to a reporter that the decedent ‘was a local off the 10 rez,’” which on its own does not establish animus. (ECF No. 16 at 15.) 11 Ms. Hokanson argues that Officer Marenco’s statement that her daughter was 12 “a local off the rez” shows animus because Defendants constructed a narrative 13 that her daughter was a less important person than Mr. Mariezcurenna, a 14 business owner with “half a dozen of these rigs running up and down the 15 highway.” She says that the officers’ discriminatory motive is further shown by 16 the fact that they were friendly with Mr. Mariezcurenna, they failed to investigate 17 his role in the crash, they created or allowed recordkeeping anomalies that had 18 the effect of concealing his dangerous driving, and they obstructed her attempts 19 to seek records. 20 Ms. Hokanson has not sufficiently pleaded facts that show that unequal 21 treatment occurred on the basis of race. With regard to the discriminatory effect 22 of the Defendants’ actions, Ms. Hokanson says that the investigation into her 23 daughter’s death was handled differently from investigations involving similarly 24 situated individuals. However, mere recitations of the legal standard do not 25 suffice to state a claim. Twombly, 550 U.S. at 555. As stated in the R&R, the 26 complaint must plead facts that explain how the investigation into Ms. 27 Hokanson’s daughter’s death was treated differently, and with what results. Cf. 28 1 United States v. Armstrong, 517 U.S. 456, 465 (1996) With regard to 2 discriminatory motive, the FAC does not plead enough facts to show that her 3 allegations of racial animus should proceed. Officer Marenco’s comment that Ms. 4 Hokanson’s daughter was “a local off the rez” may not have been intended to be 5 racially pejorative, although additional facts about context, tone, or a pattern of 6 racially coded remarks may show that it likely was. Ms. Hokanson also pleads 7 that Defendants exhibited favoritism towards Mr. Mariezcurenna, and under the 8 facts in the FAC, favoritism could be a sufficient explanation for the alleged 9 misconduct. Furthermore, Plaintiff has not pleaded any facts showing racial 10 animus on the parts of Sgt. Cavanaugh, Officer Bonds and Officer Nivarel. There 11 is no vicarious liability in Section 1983 cases. Taylor, 880 F.2d at 1045. 12 The R&R recommends dismissing Ms. Hokanson’s equal protection claim 13 without leave to amend because she has attempted to plead it twice without 14 success. Ms. Hokanson’s failures to plead equal protection may be due to her 15 status as a pro se plaintiff, rather than the weakness of the claim. The claim will 16 be dismissed without prejudice and with leave to amend. 17 3. Other Claims 18 Only the recommendations that Ms. Hokanson contests are reviewed de novo. 19 Some of the R&R’s recommendations with respect to Counts 1, 2, 3, 4, 5, 6, and 20 7 are uncontested. The R&R recommends allowing the FAC to proceed with the 21 unlawful seizure claims against Officer Marenco under the Fourth Amendment 22 in Count 1 and the parallel clause of the state constitution in Count 3. As for the 23 prolonged retention claim in Count 2, the R&R recommends dismissing it with 24 prejudice insofar as it is brought under the Fourteenth Amendment, Hudson v. 25 Palmer, 468 U.S. 517, 531-32 (1984), and allowing it under the Fourth 26 Amendment against county Officers Davis, Kufalk, and Maynez only, who are 27 said to have written up reports on the firearm listing a false serial number. The 28 1 Court agrees with these unobjected-to conclusions. The R&R further 2 recommends dismissing Plaintiff’s state law tort claims in Counts 5, 6, and 7 3 without prejudice. The Court agrees that they should be dismissed for 4 jurisdictional reasons, and without prejudice so that they may be raised in state 5 court. 6 Although review is not required, a court is permitted to review the unobjected- 7 to portions of an R&R. Thomas, 474 U.S. at 149. The R&R recommends 8 dismissing without prejudice the civil conspiracy claim in Count 4 because the 9 FAC fails to plead facts showing that Defendants agreed or otherwise engaged in 10 concerted action to deprive Ms. Hokanson of her rights. The Court concludes 11 differently. The FAC pleads that Sgt. Cavanaugh was involved in Officer 12 Marenco’s purportedly unlawful seizure of Ms. Hokanson’s gun, which suffices to 13 state a claim for civil conspiracy. 14 “To state a claim for conspiracy to violate one's constitutional rights under 15 section 1983, the plaintiff must state specific facts to support the existence of the 16 claimed conspiracy.” Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989). 17 The plaintiff must show “an agreement or meeting of the minds to violate 18 constitutional rights.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 19 2010). “The defendants must have, by some concerted action, intended to 20 accomplish some unlawful objective for the purpose of harming another which 21 results in damage.” Mendocino Env't Ctr. v. Mendocino County, 192 F.3d 1283, 22 1301 (9th Cir. 1999) (cleaned up). “To be liable, each participant need not know 23 the exact details of the plain, but each participant must at least share the 24 common objective of the conspiracy.” Crowe, 608 F.3d at 440. “Conspiracy is not 25 itself a constitutional tort under § 1983.” Lacey v. Maricopa Cnty., 693 F.3d 896, 26 935 (9th Cir. 2012). Conspiracy may “enlarge the pool of responsible defendants 27 by demonstrating their causal connections to the violation....” Id. But “[i]t does 28 1 not enlarge the nature of the claims asserted by the plaintiff,” so “there must 2 always be an underlying constitutional violation.” Id. And the failure to state a 3 colorable underlying constitutional violation is fatal to a conspiracy claim based 4 on the same allegations. Avalos v. Baca, 595 F.3d 583, 592 (9th Cir. 2010). 5 Ms. Hokanson has properly pleaded that at least two of the Defendants agreed 6 or entered a meeting of the minds to cause a violation of her rights against 7 unlawful seizure of her property. Under the facts pleaded in the FAC, it is indeed 8 plausible that Sgt. Cavanaugh knew of and acquiesced to Officer Marenco’s 9 seizure of Ms. Hokanson’s gun. Cf. Johnson v. Slave-Noose, No. 10 322CV00290ARTCSD, 2023 WL 2877135, at *4 (D. Nev. Jan. 12, 2023) (A pro se 11 plaintiff may state a claim for civil conspiracy where they allege that Defendants 12 acted together in depriving them of their constitutional rights). The holding supra, 13 Section III.B.1, that Ms. Hokanson has properly pleaded that Sgt. Cavanaugh 14 knew of and failed to prevent Officer Marenco’s seizure of the gun compels this 15 conclusion. Sgt. Cavanaugh not only took cover when Officer Marenco seized the 16 gun, but also stated latter that the choice to seize it was, if anyone asked, Captain 17 “Hollister’s choice,” suggesting that he was aware that Ms. Hokanson suffered a 18 deprivation and wished to deflect responsibility. 19 The Court adopts the R&R’s conclusion that Ms. Hokanson has not stated a 20 claim for civil conspiracy against Officers Davis, Kufalk, and Maynez based on 21 the prolonged retention of her firearm. This claim is based on the defendants’ 22 incorrect notation of the gun’s serial number, which led to a lengthy investigation. 23 Ms. Hokanson has not pleaded facts that make it sufficiently likely that these 24 officers shared the “common objective of the conspiracy.” Crowe, 608 F.3d at 440. 25 The fact that all of the officers listed the same incorrect serial number in their 26 reports may suggest that they copied the number from each other’s reports or 27 from another common source in ignorance. It does not necessarily imply an 28 1 agreement or meeting of the minds to cause a prolonged investigation and deprive 2 Ms. Hokanson of her property. 3 IV. Motion for Leave to File a Second Amended Complaint 4 In addition to objecting to the R&R and filing related motions, Ms. 5 Hokanson moved for leave to file a Second Amended Complaint (“SAC”) and join 6 another Plaintiff. (ECF Nos. 27, 28, 29/30.) NHP Defendants opposed the revised 7 motion for leave to amend the complaint (ECF No. 32) on the basis that 8 amendment would be futile, arguing that Ms. Hokanson had failed to meet the 9 deadline for service of process. (ECF No. 32.) Ms. Hokanson filed a motion for 10 sur-reply with additional points and authorities. (ECF No. 38.) 11 Ms. Hokanson’s motion for leave to file an SAC is premature, and is denied 12 as moot with leave to refile. Ms. Hokanson filed this motion before the screening 13 of her FAC was complete. No order had been entered on which claims proceeded, 14 which were dismissed with leave to amend, and which were dismissed without 15 leave to amend. Ms. Hokanson was on notice that the proper time to file a motion 16 to allow an SAC was after the entry of the order screening the FAC. (ECF No. 16 17 at 15) (“Plaintiff should be given 30 days from the date of any order adopting this 18 Report and Recommendation to file a second amended complaint.”) 19 This order adopts the R&R’s recommendation that Ms. Hokanson receive 20 30 days to properly file her SAC. In her SAC, Ms. Hokanson may bring claims 21 revised pursuant to the guidance in this order and the R&R, as well as new 22 claims. These include, but are not limited to claims against Churchill County, 23 claims alleging the unreasonable or warrant-less deprivation of property other 24 than the firearm, and viable claims on behalf of a new plaintiff. She is further 25 reminded that she should not re-plead her state claims in this Court. Ms. 26 Hokanson may not re-plead claims where she has not been granted leave to 27 amend. 28 1 V. Motion for Leave to File Late Notice of Related State Proceeding 2 Ms. Hokanson has filed a notice of proceedings in state court that relate to the 3 same incident, referring to Local Rule 5-1. (ECF No. 23.) But Local Rule 5-1 is 4 about proof of service, and does not refer to similar state court proceedings. 5 The Court therefore construes her notice as a motion for judicial notice. 6 Pursuant to Federal Rule of Evidence 201, courts may take judicial notice of 7 matters of public record, but not of facts that may be subject to reasonable 8 dispute. United States v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011). 9 The Court takes judicial notice of the existence of Hokanson v. Davis. et al., No. 10 2024-10-DC-1173 (Nev. 10th Jud. Dist. Oct. 24, 2024), and the related appeal 11 before the Nevada Supreme Court, Hokanson v. Sheriff et al., No. 91945 (Nev. 12 Jan. 13, 2026). 13 VI. Conclusion 14 IT IS THEREFORE ORDERED that Nevada Highway Patrol Defendants’ 15 motion to dismiss is DENIED. (ECF No. 32). 16 IT IS FURTHER ORDERED that Ms. Hokanson’s motion for sur-reply to the 17 aforementioned motion to dismiss is DENIED AS MOOT. (ECF No. 38.) 18 IT IS FURTHER ORDERED that all motions related to the R&R screening 19 Plaintiff’s FAC are GRANTED. (ECF Nos. 17, 19, 22, 24/25/26.) 20 The Clerk of Court is kindly directed to file Plaintiff’s objection at ECF No. 21 24-1/25-1/26-1. 22 IT IS FURTHER ORDERED that the R&R screening Plaintiff’s First 23 Amended Complaint is ADOPTED IN PART. (ECF No. 16.) 24 The Fourth Amendment unlawful seizure claim in Count 1 proceeds against 25 Defendants A. Marenco and Brian Cavanaugh. Parallel claims against 26 Defendants A. Marenco and Brian Cavanaugh under Article 1, Section 18 of the 27 Nevada Constitution in Count 3 also proceed. 28 1 The prolonged retention claim in Count 2 is construed as a Fourth 2 Amendment claim and proceeds against Defendants Mike Davis, B. Kufalk, and 3 Rudy Maynez. As against Defendants A. Marenco, Brian Cavanaugh, Anthony 4 Hollister, and Noel Ugalde, it is dismissed without prejudice and with leave to 5 amend. 6 The civil conspiracy claim in Count 4 proceeds against Defendants A. Marenco 7 and Brian Cavanaugh with respect to the seizure of Plaintiff’s firearm. In all other 8 respects, it is dismissed without prejudice and with leave to amend. 9 Plaintiff’s state law tort claims in Counts 5, 6, and 7 are dismissed without 10 prejudice so that they may be raised in state court, and without leave to amend 11 in this forum. 12 Plaintiff’s Fourteenth Amendment equal protection claim in Count 8 is 13 dismissed without prejudice and with leave to amend. 14 The Clerk of Court is directed to issue summonses for the Defendants against 15 whom claims are proceeding, and to deliver these to the U.S. Marshal for service. 16 The Clerk is also directed to send sufficient copies of the FAC and this Order 17 to the U.S. Marshal for service on the Defendants. 18 The Clerk is also directed to send to Plaintiff USM-285 forms for each of the 19 Defendants against whom claims are proceeding. Plaintiff has 21 days within 20 which to furnish to the U.S. Marshal the required USM-285 forms with relevant 21 information as to each defendant on each form at 400 S. Virginia Street, 2nd 22 floor, Reno, Nevada 89501. Plaintiff will receive from the U.S. Marshal a copy of 23 the USM-285 forms showing whether service has been accomplished, and if any 24 of the defendants were not served. If Plaintiff wants service to be attempted again, 25 she must file within 20 days of receiving the U.S. Marshal’s confirmation a motion 26 with the court providing a more detailed name and/or address for service, or 27 indicating that some other method of service should be attempted. 28 1 Plaintiff is reminded that under Federal Rule of Civil Procedure 4(m), service 2 || must be completed within 90 days of the date of this order. If Plaintiff requires 3 || additional time to meet any of the deadlines set by the court, she must file a 4 || motion for extension of time under Local Rule 1A 6-1 before the expiration of the 5 || deadline, and the motion must be supported by a showing of good cause. A 6 || motion filed after a deadline set by the court or applicable rules will be denied 7 || absent a showing of excusable neglect. 8 IT IS FURTHER ORDERED that Plaintiff has 30 days from the date of this 9 || order to file an amended complaint curing the defects identified in this order. 10 || Leave to amend is only granted to restate the claims for which Plaintiff has been 11 || allowed to proceed and to attempt to assert the claims that have been dismissed 12 || without prejudice. Any defendants, claims or allegations not included in the 13 || second amended complaint will not carry forward in this action. A failure to timely 14 || file a second amended complaint will result in this action proceeding as set forth 15 || in the screening of the FAC. 16 IT IS FURTHER ORDERED that Plaintiffs pending motions to file a Second 17 |} Amended Complaint and add an additional plaintiff are DENIED AS MOOT. (ECF 18 || Nos. 27, 28, 29/30.) 19 IT IS FURTHER ORDERED that Ms. Hokanson’s motion for leave to file a late 20 || notice of a related state proceeding is construed as a motion for judicial notice 21 || and GRANTED. (ECF No. 23.) 22 DATED: June 17, 2026

24 ANNERTRAUM SS 25 UNITED STATES DISTRICT JUDGE 26 27 28 17