Harmon v. Waggoner

• Court: District Court, D. Nevada
• Decided: September 3, 2025
• Docket: 2:25-cv-01591
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 BYRON HARMON, Case No. 2:25-cv-01591-GMN-EJY

5 Plaintiff, ORDER 6 v. AND

7 BRETT WAGGONER, Nye County REPORT AND RECOMMENDATION

Manager; BRUCE JABOUR, Commissioner, 8 et al.,

9 Defendants.

10 11 Pending before the Court is Plaintiff’s Notice of Filing Without Prepayment of Fees (ECF 12 No. 1), the Complaint (ECF No. 1-2), a Motion for Temporary Restraining Order and Preliminary 13 Injunction (ECF No. 1-4), and a Motion to Convene a Federal Grand Jury for Investigation of 14 Criminal Violations, including RICO and Conspiracy (ECF No. 1-6). 15 I. Plaintiff Fails to Establish A Basis to Proceed in forma pauperis. 16 Plaintiff’s Notice of Filing Without Prepayment of Fees is denied. United States District 17 Court for the District of Nevada Local Special Rule 1-1 states: “Any person who is unable to prepay 18 the fees in a civil case may apply to the court for leave to proceed in forma pauperis. The application 19 must be made on the form provided by the court and must include a financial affidavit disclosing the 20 applicant’s income, assets, expenses, and liabilities.” Not only is Plaintiff’s Notice not on the 21 Court’s form, but Plaintiff has not shown he is “unable to pay … [filing] fees or give security 22 therefor.” 28 U.S.C. § 1915(a). Plaintiff also fails to provide the information required to 23 demonstrate “his poverty … [that] prevent[s] him from paying the filing fee and providing himself 24 and his dependents (if any) with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 25 335 U.S. 331, 339–40 (1948). For this reason Plaintiff’s Notice is denied without prejudice and with 26 leave to amend. 27 Further, despite Plaintiff’s current failure to establish that he may proceed in forma pauperis, 1 II. Plaintiff’s Complaint is Dismissed. 2 A. The Screening Standard. 3 When screening a complaint, a court must identify cognizable claims and dismiss claims that 4 are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief 5 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to 6 state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal 7 Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To 8 survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state 9 a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The 10 Court liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt 11 that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 12 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 13 In considering whether the complaint is sufficient to state a claim, all allegations of material 14 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 15 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 16 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 17 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 18 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 19 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 20 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 21 States, 70 F.3d 1103, 1106 (9th Cir. 1995).

22 B. The State of Nevada, Nye County District Attorney, Nye County Manager, Nye County Commissioners, and County Code Enforcement Manager are Immune From 23 Suit. 24 Plaintiff sues the State of Nevada, which is immune from suit. Halverson v. Nevada 25 Commission on Judicial Discipline, Case No. 2:08-cv-1006-RCJ-LRL, 2009 WL 10708909, at *3 26 (D. Nev. March 26, 2009) (citing Alabama v. Pugh, 438 U.S. 781, 781-82 (1978)). 27 The Nye County District Attorney is also immune from suit. Morris v. State Bar of 1 Luera, Case No. 1:08-cv-00282, 2008 WL 4821766, at *4 (E.D. Cal. Nov. 4. 2008); Pobursky v. 2 Madera County, Case No. 1:07-cv-0611, 2007 WL 2023529, at *6 (E.D. Cal. July 7, 2007). 3 The Nye County Manager (Waggoner) and the five County Commissioners named by 4 Plaintiff are entitled to legislative immunity. Legislative immunity extends to those actions falling 5 within “the sphere of legitimate legislative activity” and to claims for monetary, declaratory, and 6 injunctive relief, all of which Plaintiff seeks. Chappell v. Robbins, 73 F.3d 918, (9th Cir. 1996). See 7 also Tenney v. Brandhove, 341 U.S. 367, 376 (1951); Supreme Court of Virginia v. Consumers 8 Union of the United States, 446 U.S. 719, 732 (1980). 9 Here, liberally construed, Plaintiff states only that he disagrees with the business licensing 10 requirements and regulations adopted by the Nye County Manager and Commissioners being applied 11 to the operation of his “non-statutory irrevocable trust.” The County Managers and Commissioners 12 were acting as part of local a governing body in a legislative capacity when they created the licensing 13 and regulations to which Plaintiff alludes. Bogan v. Scott Harris, 523 U.S. 44, 49 (1998) (the 14 application of legislative immunity applies to local legislators, such as county commissioners); 15 Martin v. Smith, Case No. CV 08-470-S-CWD, 2009 WL 3199638, at **5-6 (D. Idaho Sept. 30, 16 2009) (“Comprehensive Plan and the Zoning Ordinance and Map are legislative actions”). See also 17 Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979). Accordingly, 18 the Court finds Plaintiff’s claims against the Nye County Manager and County Commissioners 19 arising from adoption of business licensing and regulatory requirements enacted in their legislative 20 capacity fail as a matter of law. 21 The Nye County Code Enforcement Officer (Mark Gancarz) is immune from suit under the 22 State of Nevada’s discretionary authority statute. NRS 41.032(2). In Ransdell v. Clark Cnty., 192 23 P.3d 756, 761-64 (Nev. 2008), the Nevada Supreme Court held that NRS 41.032(2)’s discretionary 24 immunity shielded Clark County from a suit based on abating the plaintiff’s property following a 25 notice of code violations regarding garbage and unused vehicles. And, as established by Cantu v. 26 McCoy, Case No. 2:24-cv-00620-MMD-NJK, 2024 WL 4696615, at *1 (D. Nev. Nov. 6, 2024), 27 discretionary immunity applies equally to a county code enforcement manager because that officer 1 Based on the foregoing, the Court recommends Plaintiff’s claims against the State of Nevada, 2 the Nye County District Attorney, the Nye County Manager, the five Nye County Commissioners, 3 and the Nye County Code Enforcement Officer be dismissed with prejudice based on immunity from 4 suit. 5 C. Plaintiff’s Claims Against Nye County and Pahrump Township Fail Under Monell. 6 Plaintiff names the Nye County Government and Pahrump Township as defendants, but fails 7 to state a claim under Monell v. Dept. of Soc. Servs, 436 U.S. 658, 690-95 (1978). Under Monell, 8 municipalities such as the Nye County and the Pahrump Township can only be liable for the 9 infringement of constitutional rights under limited circumstances not alleged in Plaintiff’s 10 Complaint. A plaintiff asserting a constitutional claim against a municipality like Nye County or 11 Pahrump under Monell must, at a minimum, allege: (1) the plaintiff had “a constitutional right of 12 which he was deprived; (2) the municipality had a policy; (3) the policy amounts to deliberate 13 indifference to his constitutional right; and (4) the policy is the moving force behind the 14 constitutional violation.” Gordon v. County of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (internal 15 quotation marks and citation omitted). Further, before a Monell claim will proceed to litigation, a 16 plaintiff must also allege one of three liability theories. Thomas v. County of Riverside, 763 F.3d 17 1167, 1170 (9th Cir. 2014) (per curiam). A local governmental entity may be held liable when it 18 acts “pursuant to an expressly adopted official policy.” Id. (citing Monell, 436 U.S. at 694); Lytle v. 19 Carl, 382 F.3d 978, 982 (9th Cir. 2004). Alternatively, local governments may be held liable for a 20 “longstanding practice or custom” that violates a constitutional right. Thomas, 763 F.3d at 1170 21 (citation omitted). Finally, local governments may be liable under Section 1983 when “‘the 22 individual who committed the constitutional tort was an official with final policy-making authority’ 23 or such an official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” 24 Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. 25 Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992), overruled on other grounds by Castro v. County 26 of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016). Plaintiff alleges no facts at all that support a 27 claim under Monell. ECF No. 1-2. For this reason the Court recommends dismissing these claims 1 D. Plaintiff Fails to State a Claim Against Aaron Ford. 2 To state a claim for relief, a complaint must “contain sufficient factual matter, accepted as 3 true, to state a claim to relief that is plausible on its face.” See Iqbal, 556 U.S. at 678. Although the 4 standard under Federal Rule of Civil Procedure 12(b)(6) does not require detailed factual allegations, 5 a plaintiff must provide more than mere labels and conclusions. Twombly, 550 U.S. at 555. Rule 8 6 of the Federal Rules of Civil Procedure requires a complaint to plead sufficient facts to give a 7 defendant fair notice of the claims against him and the grounds upon which it rests. Yamaguchi v. 8 United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) (citations omitted). 9 Plaintiff fails to state a claim against Defendant Aaron Ford, the Nevada Attorney General. 10 In a short, yet jumbled, rendition of facts, Plaintiff states only that he apparently disagrees with the 11 obligation to obtain a business license and submit to regulatory schemes that are “without 12 constitutional or lawful authority.” Plaintiff alleges no facts at all regarding the Nevada Attorney 13 General, let alone facts that would tie Mr. Ford to the alleged wrongdoing about which Plaintiff 14 complains. Immunities from suit apply to Mr. Ford as they would to any other state employee 15 carrying out discretionary duties or quasi-judicial duties. However, here, there is no claim to analyze 16 with respect to whether immunity applies to Mr. Ford’s supposed wrongdoing. 17 Because Plaintiff fails to plead a cognizable claim against the Attorney General of the State 18 of Nevada, but it is theoretically possible for Plaintiff to amend his Complaint to do so, the Court 19 dismisses Plaintiff’s Complaint against Mr. Ford without prejudice but with leave to amend.

20 E. Plaintiff’s 42 U.S.C. § 1983, and 18 U.S.C. §§ 241 and 242 Fail as a Matter of Law, as Does Plaintiff’s Motion to Convene a Federal Grand Jury. 21 22 Well settled law establishes 42 U.S.C. § 1983 is not a cause of action. Lovell v. Poway 23 Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996). There is also no private right of action under 24 18 U.S.C. § 241. Markley v. City of Seattle, Case No. C22-5038-RSL, 2022 WL 374415, at *1 25 (W.D. Wash. Feb. 8, 2022). The Ninth Circuit has also held there is no private right of action under 26 18 U.S.C. § 242. Uziel v. Superior Ct. of Cal., 857 Fed. Appx. 405, 406 (9th Cir. 2021). The Court 27 therefore recommends Plaintiff’s first, second, and third counts be dismissed with prejudice. 1 With respect to the Motion to Convene a Federal Grand Jury, Plaintiff has no constitutional 2 right to have another person criminally prosecuted. Linda R.S. v. Richard D., 410 U.S. 614, 619 3 (1973) (“a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution 4 of another”). Thus, this Motion is dismissed with prejudice. 5 F. Plaintiff’s Ultra Vires and Trespass Claims. 6 “[A]n ultra vires claim may only be asserted against officers in their individual or personal 7 capacity.” Jewel v. Nat’l Sec. Agency, 965 F. Supp. 2d 1090, 1111 (N.D. Cal. 2013). Here, Plaintiff 8 has brought suit against non-individual entities, which are not proper defendants in an ultra vires 9 claim. Thus, to the extent Plaintiff sues Nye County and Pahrump Township for an ultra vires 10 violation, his claim fails as a matter of law and must be dismissed. 11 Further, and more problematic for Plaintiff, is that he has not pleaded sufficient facts to state 12 an ultra vires claim against any individual defendant. A claim that a local official acted ultra vires 13 must be premised on a claim that he or she acted “‘without any authority” whatsoever. Pennhurst 14 State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 n.11 (1984) (quoting Florida Dept. of State v. 15 Treasure Salvors, Inc., 458 U.S. 670, 697 (1982)). “An officer acts ultra vires when the officer is 16 not doing the business which the sovereign has empowered him to do or he is doing it in a way which 17 the sovereign has forbidden.” Robinson v. Salazar, 885 F. Supp. 2d 1002, 1029 (E.D. Cal. 2012) 18 aff’d sub nom. Robinson v. Jewell, 790 F.3d 910 (9th Cir. 2015). Simply put, “ultra vires claims 19 rest on the official’s lack of delegated power.” United States v. Yakima Tribal Court, 806 F.2d 853, 20 860 (9th Cir. 1986). 21 Plaintiff’s allegations fail to demonstrate that any individually named defendant acted 22 without authority to do so. ECF No. 1-2. Rather, his claim is based solely on his disagreement with 23 the enactment and enforcement of licensing and regulatory requirements related to business 24 operations in Nye County. Id. at 4. Even if one of the defendants lacked authority to engage in 25 challenged conduct, so long as the exercise was simply error, there is no claim. Larson v. Domestic 26 & Foreign Commerce Corp., 337 U.S. 682, 690 (1949) (holding that “[a] claim of error in the 27 exercise of [delegated] power is ... not sufficient” to state a claim for ultra vires action). 1 Because Plaintiff fails to state an ultra vires claim against any named defendant, the Court 2 recommends Plaintiff’s Count 4 against (1) Nye County and Pahrump Township be dismissed with 3 prejudice, and (2) the individually named defendants be dismissed without prejudice and with leave 4 to amend. 5 Finally, Plaintiff asserts no facts that support trespass to liberty or property under the U.S. 6 Constitution or federal law. Under the Fifth Amendment, a person may assert a takings claim if he 7 can show that a regulation is “so onerous that its effect is tantamount to a direct appropriation or 8 ouster” according to the “standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 9 104 (1978).” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537-38 (2005). The Penn Central 10 standard considers “[t]he economic impact of the regulation on the claimant and, particularly, the 11 extent to which the regulation has interfered with distinct investment-backed expectations,” and “the 12 character of the governmental action.” Penn Central, 438 U.S. at 124. Under Penn Central, courts 13 examine a regulation’s “character” and “economic impact,” asking whether the action goes beyond 14 “adjusting the benefits and burdens of economic life to promote the common good” and whether it 15 “interfere[s] with distinct investment-backed expectations.” Id. “That multi-factor test balances the 16 government’s manifest need to pass laws and regulations ‘adversely affect[ing]...economic values, 17 with [the] longstanding recognition that some regulation ‘goes too far.’” Koontz v. St. Johns River 18 Water Mgmt. Dist., 570 U.S. 595, 621 (2013) (Kagan, J. dissenting) (quoting Pennsylvania Coal Co. 19 v. Mahon, 260 U.S. 393, 415 (1922)). Plaintiff does not and, the Court finds he cannot, meet the 20 above standard for a taking claim based on business licensing and regulations related to his non- 21 statutory irrevocable trust. 22 Further, in order to state a claim under § 1983 for violation of substantive due process, “a 23 plaintiff must, as a threshold matter, show a government deprivation of life, liberty, or property.” 24 Nunez v. City of L.A., 147 F.3d 867, 871 (9th Cir. 1998). “[O]nly the most egregious official 25 conduct” establishes a substantive due process violation. County of Sacramento v. Lewis, 523 U.S. 26 833, 846 (1998). Under § 1983 claim based on a lack of procedural due process, a plaintiff must 27 allege “three elements: (1) a liberty or property interest protected by the Constitution; (2) a 1 deprivation of the interest by the government; [and] (3) lack of process.” Portman v. County of 2 Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). 3 Not only does Plaintiff allege no facts demonstrating a substantive or procedural due process 4 claim based on the governmental deprivation of liberty or property, but the Court finds there are no 5 true facts Plaintiff could reasonably allege arising from the enactment of licensing and regulation of 6 business that would meet the requirements of such a claim. 7 Accordingly, the Court recommends this claim be dismissed with prejudice. 8 III. Order 9 IT IS HEREBY ORDERED that Plaintiff’s Notice of Filing Without Prepayment of Fees 10 (ECF No. 1), and his Complaint (ECF No. 1-2) be DISMISSED without prejudice and with leave to 11 amend. 12 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff a copy of the Court’s 13 non-prisoner Application to Proceed in forma pauperis together with the instructions for filing the 14 same. 15 IT IS FURTHER ORDERED that because Plaintiff’s Complaint is dismissed in its entirety, 16 Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 1-4) is 17 DISMISSED without prejudice. Upon presentation of an amended complaint that states a claim 18 upon which Plaintiff may proceed, Plaintiff may also file a motion seeking, if appropriate, either or 19 both a temporary restraining order and preliminary injunction. 20 IT IS FURTHER ORDERED that Plaintiff’s Motion to Convene a Federal Grand Jury for 21 Investigation of Criminal Violations, including RICO and Conspiracy (ECF No. 1-6) is DENIED 22 with prejudice. 23 IT IS FURTHER ORDERED that the following claims are dismissed without prejudice and 24 with leave to amend: 25 • Plaintiff’s claim under Monell against Nye County and Pahrump Township. Any claim 26 stated in an amended complaint must allege facts demonstrating a violation that would 27 satisfy the pleading requirements of a Monell claim as explained above; 1 • Plaintiff’s claims against Aaron Ford. Any claim against Mr. Ford must assert facts tying 2 Mr. Ford to alleged wrongdoing that does not arise under discretionary act or quasi- 3 judicial immunity; and 4 • Plaintiff’s ultra vires claims against the individual defendants. Any claim must allege 5 facts demonstrating each individual acted without any authority whatsoever and that the 6 action was not the result of simple error. 7 If Plaintiff chooses to file an amended complaint, he must title the document “FIRST 8 AMENDED COMPLAINT.” If filed, the First Amended Complaint must include all facts 9 identifying wrongdoing by the individual defendants and or municipalities named and tie those facts 10 to identifiable, legally cognizable claims. Plaintiff must file a First Amended no later than 11 September 22, 2025. 12 IT IS FURTHER ORDERED that at the same time Plaintiff files a First Amended Complaint 13 he must file an Application to Proceed in forma pauperis on the Court’s form providing the 14 information necessary to determine if he is eligible to proceed without prepaying filing fees. 15 IT IS FURTHER ORDERED that the First Amended Complaint must not include claims that 16 against immune entities or that are recommended for dismissal with prejudice based on immunity 17 from suit. 18 IT IS FURTHER ORDERED that the Clerk of Court must separate ECF Nos. 1-2, 1-4, and 19 1-6 from Plaintiff’s filing at ECF No. 1 and file ECF No. 1-2 as Plaintiff’s Complaint, showing it is 20 dismissed, in part, without prejudice under this Order. The Clerk of Court must file ECF No. 1-4 as 21 Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction showing the Motion 22 is DENIED without prejudice. Finally, the Clerk of Court must file ECF No. 1-6 as Plaintiff’s 23 Motion to Convene a Federal Grand Jury showing this Motion is DENIED with prejudice. 24 IT IS FURTHER ORDERED that failure to comply with the requirements of this Order will 25 result in a recommendation to dismiss this action in its entirety. 26 IV. Recommendations 27 IT IS HEREBY RECOMMENDED that Plaintiff’s claims asserted against the State of 1 Strickland, Koenig, and Bayne; Nye County Code Enforcement Officer Gancarz; and Nye County 2 District Attorney Kunzi be DISMISSED with prejudice because these defendants are immune from 3 suit. 4 IT IS FURTHER RECOMMENDED that Plaintiff’s Count 1 (alleging a violation of 42 5 U.S.C. § 1983), Count 2 (alleging a violation of 18 U.S.C. § 241), and Count 3 (alleging a violation 6 of 42 U.S.C. § 242) be DISMISSED with prejudice because Plaintiff can state no cause of action 7 based on an alleged violation of these statutes. 8 IT IS FURTHER RECOMMENDED that Plaintiff’s ultra vires claim be DISMISSED with 9 prejudice to the extent it is brought against Nye County or Pahrump Township. 10 IT IS FURTHER RECOMMENDED that Plaintiff’s Trespass on Rights to Liberty and 11 Property be DISMISSED with prejudice. 12 Dated this 3rd day of September, 2025. 13

14 ELAYNA J. YOUCHAH 15 UNITED STATES MAGISTRATE JUDGE

16 17 NOTICE 18 Under Local Rule IB 3-2, any objection to this Report and Recommendation must be in 19 writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court holds 20 the courts of appeal may determine that an appeal has been waived due to the failure to file objections 21 within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). The Ninth Circuit also held 22 that (1) failure to file objections within the specified time and (2) failure to properly address and 23 brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 24 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 25 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 26 27