Holmes v. Reusch

• Court: District Court, D. Nevada
• Decided: July 18, 2024
• Docket: 2:24-cv-01138
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 David Holmes, Case No. 2:24-cv-01138-GMN-BNW

5 Plaintiff, SCREENING ORDER AND 6 v. REPORT AND RECOMMENDATION

7 Jason Reusch et al.,

8 Defendants.

9 10 David Holmes brings this case based on events that allegedly occurred on January 29, 11 2020, involving North Las Vegas police officers and Dotty’s Casino. Plaintiff moves to proceed 12 in forma pauperis. ECF No. 4. He submitted the declaration required by 28 U.S.C. § 1915(a) 13 showing an inability to prepay fees and costs or give security for them. His request to proceed in 14 forma pauperis will, therefore, be granted. 15 The Court now screens Plaintiff’s complaint (ECF No. 1-1) as required by 28 U.S.C. 16 §§ 1915(e)(2) and 1915A. 17 A. Screening Standard for Pro Se Prisoner Claims 18 Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity. See 28 20 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 21 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 23 (2). In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act 24 requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief 25 may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. Proc. 12(b)(6). 26 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 27 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 1 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 2 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 3 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 4 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 5 2014) (quoting Iqbal, 556 U.S. at 678). 6 In considering whether the complaint states a claim, all allegations of material fact are 7 taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship v. 8 Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 9 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 10 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 11 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. But unless it 12 is clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff 13 should be given leave to amend the complaint with notice regarding the complaint’s deficiencies. 14 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 15 B. Screening the Amended Complaint 16 Here, Plaintiff alleges that on January 29, 2020, he was headed to Dotty’s Casino located 17 at 2542 Las Vegas Boulevard when North Las Vegas Police Officer Reusch ordered him to the 18 ground. Plaintiff explains he put his hands up in the air, but that Officers Reusch hit him in the 19 face with a baton, and that Officer Cooley joined in by kicking and stomping on him. Plaintiff 20 alleges he sustained several injuries as a result. He also alleges Dotty’s Casino knew he needed 21 help and failed to call an ambulance even though he was laying “in a pool of blood on their 22 property.” 23 1. Claims under 18 U.S.C. § 4, 18 U.S.C. § 241, 18 U.S.C. § 242 24 All the claims Plaintiff asserts under Title 18 are based on criminal statutes. Plaintiff 25 cannot assert these claims because there is no private right of action for violation of criminal 26 statutes. See Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006) (no private right 27 of action for violation of criminal statutes). As a result, the Court recommends that these claims 1 2. Claim under 42 U.S.C. § 1983—Eighth Amendment 2 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured 3 by the Constitution and laws of the United States, and (2) that the deprivation was committed by a 4 person acting under color of state law.” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 5 1149 (9th Cir. 2011) (citing Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)); Soo Park v. 6 Thompson, 851 F.3d 910, 921 (9th Cir. 2017). In order to state a claim for the use of excessive 7 force in violation of the Eighth Amendment, a plaintiff must establish that prison officials applied 8 force maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or 9 restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The Eighth Amendment thus 10 governs conditions of confinement and the use of force against prisoners but does not apply to 11 police action in the community. 12 Because plaintiff was not incarcerated at the time of the events described, he cannot bring 13 an Eighth Amendment claim. As a result, the Court will recommend that this claim be dismissed 14 with prejudice. 15 3. Fourth Amendment violations 16 The Fourth Amendment provides that “the right of the people to be secure in their 17 persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be 18 violated.” U.S. Const. amend. IV. “[T]he Fourth Amendment is enforceable against the States 19 through the Fourteenth Amendment.” Camara v. Mun. Court of City & Cty. of San Francisco, 20 387 U.S. 523, 528 (1967). Allegations of excessive force during the course of an arrest are 21 analyzed under the Fourth Amendment, which protects the right against unreasonable seizures of 22 a person. Graham v. Connor, 490 U.S. 386, 394–95 (1989). 23 The Court construes the allegations above as asserting a § 1983 Fourth Amendment claim 24 against Officers Reusch and Cooley in their individual capacities. 25 4. Leave to amend 26 It appears Plaintiff may be attempting to allege a negligence claim against Dotty’s Casino 27 for not calling an ambulance (or not calling one sooner). To succeed with a claim of negligence 1 legal causation, and (4) damages.” Turner v. Mandalay Sports Entm't, LLC, 124 Nev. 213, 217, 2 180 P.3d 1172, 1175 (2008). 3 Plaintiff will be allowed to amend his complaint to allege additional facts that explain 4 where he was located in relation to Dotty’s Casino and why he believes employees at the 5 establishment were aware of Plaintiff’s condition. In addition, he must provide additional facts 6 explaining why/how his injuries were caused by Dotty’s Casino’s failure to act. 7 Plaintiff will have 30 days to amend the complaint. Should an amended complaint not be 8 filed within 30 days, then the case will proceed on the Fourth Amendment claim against the two 9 North Las Vegas Officers. 10 C. Conclusion 11 IT IS THEREFORE ORDERED that Plaintiff’s application for leave to proceed in 12 forma pauperis (ECF No. 4) is GRANTED. Plaintiff will not be required to pay an initial 13 installment fee. Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as 14 amended by the Prison Litigation Reform Act. The movant is permitted to maintain this action to 15 conclusion without the necessity of prepayment of fees or costs or the giving of security. 16 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the 17 Prison Litigation Reform Act, the Clark County Detention Center will forward payments from the 18 account of David Holmes, Inmate No. 121044, to the Clerk of the United States District Court, 19 District of Nevada, 20% of the preceding month’s deposits (in months that the account exceeds 20 $10.00) until the full $350 filing fee has been paid for this action. The Clerk of Court is kindly 21 directed to send a copy of this order to the Finance Division of the Clerk’s Office. The Clerk of 22 Court is also kindly directed to send a copy of this order to the attention of Chief of Inmate 23 Services for the Clark County Detention Center at 330 S. Casino Center Blvd, Las Vegas, NV 24 89101. 25 26 27 1 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 2 unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as amended by the 3 Prison Litigation Reform Act. 4 IT IS FURTHER ORDERED that Plaintiff’s 42 U.S.C. § 1983 claim for excessive force 5 in violation of his Fourth Amendment rights shall proceed against Officers Reusch and Cooley. 6 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff’s 7 complaint (ECF No. 1-1). 8 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to: (1) issue 9 summons to Defendant Officers Reusch and Cooley; (2) deliver the summonses along with two 10 copies of the complaint (ECF No. 1-1) to the U.S. Marshal for service; and (3) mail Plaintiff two 11 blank copies of Form USM-285. On the USM-285 forms, Plaintiff must fill in defendants’ last- 12 known addresses so that the defendants may be served. 13 IT IS FURTHER ORDERED that Plaintiff shall have until August 18, 2024, to send the 14 U.S. Marshal the required Form USM-285. Within twenty-one days after receiving a copy of the 15 Form USM-285 back from the U.S. Marshal showing whether service has been accomplished, 16 Plaintiff must file a notice with the Court identifying whether the defendant was served. If 17 Plaintiff wishes to have service again attempted on an unserved defendant, the Plaintiff must file 18 a motion with the Court identifying the unserved defendant and specifying a more detailed name 19 and/or address for said defendant or whether some other manner of service should be attempted. 20 IT IS FURTHER ORDERED that Plaintiff shall have until October 18, 2024, to serve 21 the Defendants. Fed. R. Civ. P. 4(m). 22 IT IS RECOMMENDED that the following claims be dismissed with prejudice: 23 • 18 U.S.C. § 4 24 • 18 U.S.C. § 241 25 • 18 U.S.C. § 242 26 • 42 U.S.C. § 1983 Eighth Amendment 27 IT IS FURTHER ORDERED that Plaintiff will have until August 18, 2024, to file an 1 || Court cannot refer to a prior pleading (1.e., the original complaint) to make the amended 2 || complaint complete. This is because, generally, an amended complaint supersedes the original 3 || complaint. Local Rule 15-1(a) requires that an amended complaint be complete without reference 4 || to any prior pleading. Once a plaintiff files an amended complaint, the original complaint no 5 || longer serves any function in the case. Therefore, in an amended complaint, as in an original 6 || complaint, each claim and the involvement of each Defendant must be sufficiently alleged. 7 8 NOTICE 9 This report and recommendation is submitted to the United States district judge assigned 10 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 11 || may file a written objection supported by points and authorities within fourteen days of being 12 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 13 || objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 14 1153, 1157 (9th Cir. 1991). 15 16 DATED: July 18, 2024 17 18 BRENDA WEKSLER 19 UNITED STATES MAGISTRATE JUDGE

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