1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DUANE BALL, Case No.: 3:26-cv-00149-CSD
4 Plaintiff Order
5 v. Re: ECF No. 1-1, 6
6 CITY OF RENO,
7 Defendant
8 9 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 6) and pro 10 se complaint (ECF No. 1-1). 11 I. IFP APPLICATION 12 A person may be granted permission to proceed IFP if the person “submits an affidavit 13 that includes a statement of all assets such [person] possesses [and] that the person is unable to 14 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 15 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 16 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 17 all actions filed IFP, not just prisoner actions). 18 The Local Rules of Practice for the District of Nevada provide: “Any person who is 19 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 20 The application must be made on the form provided by the court and must include a financial 21 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 22 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 23 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 1 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 2 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 3 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 4 therefore, the application is granted.
5 II. SCREENING 6 A. Standard 7 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 8 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 9 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 10 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 11 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 12 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 13 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 14 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668
15 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 16 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 17 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 18 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 19 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 20 The court must accept as true the allegations, construe the pleadings in the light most 21 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 22 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 23 1 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 2 (1980) (internal quotation marks and citation omitted). 3 A complaint must contain more than a “formulaic recitation of the elements of a cause of 4 action,” it must contain factual allegations sufficient to “raise a right to relief above the
5 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 6 must contain something more … than … a statement of facts that merely creates a suspicion [of] 7 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 8 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 9 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 10 A dismissal should not be without leave to amend unless it is clear from the face of the 11 complaint that the action is frivolous and could not be amended to state a federal claim, or the 12 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 13 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 14 B. Plaintiff’s Complaint
15 Plaintiff sues the City of Reno for violation of the Fourteenth Amendment’s Equal 16 Protection Clause based on an allegation that the City has a custom and practice of selectively 17 enforcing Nevada’s pandering statute that is impermissibly based on gender. Plaintiff contends 18 that a female, Jamie Armstrong, engaged in the same or very similar conduct as Plaintiff, but the 19 City of Reno Police Department enforced the statute against Plaintiff and not against Armstrong. 20 “The Equal Protection Clause of the Fourteenth Amendment commands that no State 21 shall deny to any person within its jurisdiction the equal protection of the laws, which is 22 essentially a direction that all persons similarly situated should be treated alike.” City of 23 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). 1 To state an equal protection claim based on alleged selective enforcement of a statute, the 2 plaintiff must allege that “enforcement had a discriminatory effect and the police were motivated 3 by a discriminatory purpose.” Lacey v. Maricopa County, 693 F.3d 896, 920 (9th Cir. 2012) 4 (citation and quotation marks omitted). “In order to prove a discriminatory effect, the claimant
5 must show that similarly situated individuals … were not prosecuted.” Id. (citation and quotation 6 marks omitted). To state a claim, the plaintiff “need only allege some facts, either anecdotal or 7 statistical, demonstrating that similarly situated defendants … could have been prosecuted, but 8 were not.” Id. (citations and quotation marks omitted). 9 “Under 42 U.S.C. § 1983, [a municipality] is not liable for merely employing a[n] [ ] 10 official who commits a constitutional violation.” Bell v.
Free access — add to your briefcase to read the full text and ask questions with AI
1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DUANE BALL, Case No.: 3:26-cv-00149-CSD
4 Plaintiff Order
5 v. Re: ECF No. 1-1, 6
6 CITY OF RENO,
7 Defendant
8 9 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 6) and pro 10 se complaint (ECF No. 1-1). 11 I. IFP APPLICATION 12 A person may be granted permission to proceed IFP if the person “submits an affidavit 13 that includes a statement of all assets such [person] possesses [and] that the person is unable to 14 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 15 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 16 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 17 all actions filed IFP, not just prisoner actions). 18 The Local Rules of Practice for the District of Nevada provide: “Any person who is 19 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 20 The application must be made on the form provided by the court and must include a financial 21 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 22 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 23 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 1 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 2 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 3 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 4 therefore, the application is granted.
5 II. SCREENING 6 A. Standard 7 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 8 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 9 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 10 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 11 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 12 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 13 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 14 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668
15 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 16 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 17 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 18 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 19 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 20 The court must accept as true the allegations, construe the pleadings in the light most 21 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 22 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 23 1 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 2 (1980) (internal quotation marks and citation omitted). 3 A complaint must contain more than a “formulaic recitation of the elements of a cause of 4 action,” it must contain factual allegations sufficient to “raise a right to relief above the
5 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 6 must contain something more … than … a statement of facts that merely creates a suspicion [of] 7 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 8 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 9 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 10 A dismissal should not be without leave to amend unless it is clear from the face of the 11 complaint that the action is frivolous and could not be amended to state a federal claim, or the 12 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 13 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 14 B. Plaintiff’s Complaint
15 Plaintiff sues the City of Reno for violation of the Fourteenth Amendment’s Equal 16 Protection Clause based on an allegation that the City has a custom and practice of selectively 17 enforcing Nevada’s pandering statute that is impermissibly based on gender. Plaintiff contends 18 that a female, Jamie Armstrong, engaged in the same or very similar conduct as Plaintiff, but the 19 City of Reno Police Department enforced the statute against Plaintiff and not against Armstrong. 20 “The Equal Protection Clause of the Fourteenth Amendment commands that no State 21 shall deny to any person within its jurisdiction the equal protection of the laws, which is 22 essentially a direction that all persons similarly situated should be treated alike.” City of 23 Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). 1 To state an equal protection claim based on alleged selective enforcement of a statute, the 2 plaintiff must allege that “enforcement had a discriminatory effect and the police were motivated 3 by a discriminatory purpose.” Lacey v. Maricopa County, 693 F.3d 896, 920 (9th Cir. 2012) 4 (citation and quotation marks omitted). “In order to prove a discriminatory effect, the claimant
5 must show that similarly situated individuals … were not prosecuted.” Id. (citation and quotation 6 marks omitted). To state a claim, the plaintiff “need only allege some facts, either anecdotal or 7 statistical, demonstrating that similarly situated defendants … could have been prosecuted, but 8 were not.” Id. (citations and quotation marks omitted). 9 “Under 42 U.S.C. § 1983, [a municipality] is not liable for merely employing a[n] [ ] 10 official who commits a constitutional violation.” Bell v. Williams, 108 F.4th 809, 824 (9th Cir. 11 2024); Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978) (section 1983 does not impose 12 respondeat superior liability on municipalities). 13 Municipalities can only be liable for the infringement of constitutional rights under 14 certain circumstances. Monell, 436 U.S. at 690-95. “[M]unicipalities may be liable under § 1983
15 for constitutional injuries pursuant to (1) an official policy; (2) a pervasive practice or custom; 16 (3) a failure to train, supervise or discipline; or (4) a decision or act by a final policymaker.” 17 Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). 18 For purposes of screening, the court finds Plaintiff has alleged a colorable selective 19 enforcement claim under the Equal Protection Clause against the City of Reno. 20 III. CONCLUSION 21 (1) Plaintiff’s IFP application (ECF No. 6) is GRANTED. 22 (2) The Clerk shall FILE the Complaint (ECF No. 1-1). 23 1 (3) The Complaint shall PROCEED against the City of Reno with the selective 2 enforcement claim under the Equal Protection Clause of the Fourteenth Amendment. 3 (4) The Clerk of Court shall ISSUE summonses for the City of Reno, and deliver the 4 same, to the U.S. Marshal for service. The Clerk also shall also SEND sufficient a copy of the
5 complaint and this Order to the U.S. Marshal for service on the City of Reno. The Clerk shall 6 SEND to Plaintiff one USM-285 form. Plaintiff has 21 days within which to furnish to the U.S. 7 Marshal the required USM-285 form with relevant information for the defendant at 400 S. 8 Virginia Street, 2nd floor, Reno, Nevada 89501. Within 20 days after receiving from the U.S. 9 Marshal a copy of the USM-285 form showing whether service has been accomplished, and if 10 the defendant was not served, and if Plaintiff wants service to be attempted again, he must file a 11 motion with the court providing a more detailed name and/or address for service, or indicating 12 that some other method of service should be attempted. 13 (5) Plaintiff is reminded that under Federal Rule of Civil Procedure 4(m), service must 14 be completed within 90 days of the date of this Order. If Plaintiff requires additional time to
15 meet any of the deadlines set by the court, he must file a motion for extension of time under 16 Local Rule 1A 6-1 before the expiration of the deadline, and the motion must be supported by a 17 showing of good cause. A motion filed after a deadline set by the court or applicable rules will 18 be denied absent a showing of excusable neglect. 19 (6) Plaintiff shall serve upon defendant or, if an appearance has been entered by counsel, 20 upon the attorney(s), a copy of every pleading, motion or other document submitted for 21 consideration by the court. If Plaintiff electronically files a document with the court’s electronic 22 filing system, no certificate of service is required. Fed. R. Civ. P. 5(d)(1)(B); LR IC 4-1(b); LR 23 5-1. If Plaintiff mails the document to the court, Plaintiff shall include with the original document submitted for filing a certificate stating the date that a true and correct copy of the 2|| document was mailed to the defendants or counsel for the defendants. If counsel has entered a 3] notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice of appearance, at the physical or electronic address stated therein. The court may disregard any document received by a district judge or magistrate judge which has not been filed with the Clerk, and any document received by a district judge, magistrate judge, or the Clerk which fails to include a certificate showing proper service when required. 8 9 1IT IS SO ORDERED. 1] 12|| Dated: July 1, 2026
Craig S. Denney 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23