UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 * * * 3 JERRY HOOKS, Case No. 2:26-cv-01870-CDS-EJY 4 Plaintiff, 5 ORDER v. and 6 REPORT AND RECOMMENDATION NEVADA and CLARK COUNTY, et al. 7 Defendants. 8 9 Pending before the Court are Plaintiff’s Application to Proceed in forma pauperis (“IFP”) 10 and Mandamus Affidavit. ECF Nos. 1, 1-1. Plaintiff’s IFP is complete and granted below. The 11 Court recommends Plaintiff’s Mandamus Affidavit be dismissed, in part, with prejudice. The Court 12 grants Plaintiff one opportunity to file a complaint against Clark County on the Court’s form. 13 I. Screening Standard 14 When reviewing a complaint filed by a pro se plaintiff, the Court must identify any 15 cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim upon which 16 relief may be granted or seek monetary relief from a defendant who is immune from such relief. 28 17 U.S.C. § 1915(e)(2). The standard for dismissing a complaint for failure to state a claim is 18 established by Federal Rule of Civil Procedure 12(b)(6). When a court dismisses a complaint under 19 § 1915(e), the plaintiff should be given leave to amend with directions to cure its deficiencies unless 20 it is clear from the face of the complaint that the deficiencies cannot be cured by amendment. Cato 21 v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). In making this determination, the Court treats 22 all allegations of material fact stated in the complaint as true, and the court construes them in the 23 light most favorable to the plaintiff. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 24 That is, pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 25 F.2d 696, 699 (9th Cir. 1988). Allegations of a pro se complainant are held to less stringent standards 26 than pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under 27 Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must plead more than mere 1 of the elements of a cause of action is insufficient. Id. In addition, a reviewing court should “begin 2 by identifying … [allegations] that, because they are no more than mere conclusions, are not entitled 3 to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions 4 can provide the framework of a complaint, they must be supported with factual allegations.” Id. 5 “When there are well-pleaded factual allegations, a court should assume their veracity and then 6 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a 7 complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing 8 court to draw on its judicial experience and common sense.” Id. 9 Finally, all or part of a complaint may be dismissed sua sponte if the plaintiff’s claims lack 10 an arguable basis either in law or in fact. This includes claims based on legal conclusions that are 11 untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a 12 legal interest which clearly does not exist), as well as claims based on fanciful factual allegations 13 (e.g., fantastic or delusional scenarios). Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); McKeever 14 v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 15 Under the Due Process Clause of the Fourteenth Amendment, “No State shall ... deprive any 16 person of life, liberty, or property, without due process of law.” U.S. Const., Amend. XIV § 1. This 17 clause guarantees the government provide procedural due process when it dispossesses an individual 18 of a liberty or property interest. Armstrong v. Manzo, 380 U.S. 545, 550 (1965). To state a claim 19 for procedural due process, a plaintiff must show: “(1) a liberty or property interest protected by the 20 Constitution; (2) a deprivation of the interest by the government, and (3) lack of process.” Portman 21 v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). The amount of process required varies 22 depending on the circumstances; however, courts generally rely on the following factors: the private 23 interest that will be impacted by the government’s actions; the risk of an erroneous deprivation and 24 the probable value of additional or substitute procedural safeguards; and the government’s interest. 25 Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). 26 27 1 II. Discussion 2 Plaintiff’s initiating document, a Mandamus Affidavit, fails to comply with LSR 2-1 3 requiring the use of the Court’s form to initiate a complaint.1 For this reason alone, Plaintiff’s 4 initiating document cannot commence a civil case in this Court.2 5 Plaintiff appears to name the State of Nevada and Clark County’s Eighth Judicial District 6 Court as Defendants. ECF No. 1 at 1. However, Plaintiff can raise no 42 U.S.C. § 1983 claims 7 against the State of Nevada as Eleventh Amendment sovereign immunity bars such actions. Will v. 8 Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) (holding that states are not persons for 9 purposes of Section 1983); Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th 10 Cir. 1991) (holding that “[t]he Eleventh Amendment prohibits federal courts from hearing suits 11 brought against an unconsenting state” and that “[t]he Eleventh Amendment’s jurisdictional bar 12 covers suits naming state agencies and departments as defendants, and applies whether the relief 13 sought is legal or equitable in nature”); NRS § 41.031(3) (stating that the State of Nevada does not 14 waive its Eleventh Amendment immunity). Therefore, claims against the State of Nevada fail as a 15 matter of law and are properly dismissed with prejudice. 16 The Eighth Judicial District Court, and all state courts in Nevada, are arms of the State. 17 “Nevada has eleven judicial districts making up the state’s general jurisdiction courts. These district 18 courts serve Nevada’s 17 counties. The 11 [j]udicial [d]istricts are served by approximately 82 19 District Court judges who … [preside] in their elected counties but have jurisdiction to serve in any 20 district court in the state”; and “the court serves as the trial court for Nevada and is part of the judicial 21 branch of state government as set forth by the Nevada Constitution.” 22 http://www.clarkcountycourts.us/general. As an arm of the State of Nevada, the Eighth Judicial 23 District Court is immune from suit under 42 U.S.C.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 * * * 3 JERRY HOOKS, Case No. 2:26-cv-01870-CDS-EJY 4 Plaintiff, 5 ORDER v. and 6 REPORT AND RECOMMENDATION NEVADA and CLARK COUNTY, et al. 7 Defendants. 8 9 Pending before the Court are Plaintiff’s Application to Proceed in forma pauperis (“IFP”) 10 and Mandamus Affidavit. ECF Nos. 1, 1-1. Plaintiff’s IFP is complete and granted below. The 11 Court recommends Plaintiff’s Mandamus Affidavit be dismissed, in part, with prejudice. The Court 12 grants Plaintiff one opportunity to file a complaint against Clark County on the Court’s form. 13 I. Screening Standard 14 When reviewing a complaint filed by a pro se plaintiff, the Court must identify any 15 cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim upon which 16 relief may be granted or seek monetary relief from a defendant who is immune from such relief. 28 17 U.S.C. § 1915(e)(2). The standard for dismissing a complaint for failure to state a claim is 18 established by Federal Rule of Civil Procedure 12(b)(6). When a court dismisses a complaint under 19 § 1915(e), the plaintiff should be given leave to amend with directions to cure its deficiencies unless 20 it is clear from the face of the complaint that the deficiencies cannot be cured by amendment. Cato 21 v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). In making this determination, the Court treats 22 all allegations of material fact stated in the complaint as true, and the court construes them in the 23 light most favorable to the plaintiff. Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 24 That is, pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 25 F.2d 696, 699 (9th Cir. 1988). Allegations of a pro se complainant are held to less stringent standards 26 than pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under 27 Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must plead more than mere 1 of the elements of a cause of action is insufficient. Id. In addition, a reviewing court should “begin 2 by identifying … [allegations] that, because they are no more than mere conclusions, are not entitled 3 to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions 4 can provide the framework of a complaint, they must be supported with factual allegations.” Id. 5 “When there are well-pleaded factual allegations, a court should assume their veracity and then 6 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a 7 complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing 8 court to draw on its judicial experience and common sense.” Id. 9 Finally, all or part of a complaint may be dismissed sua sponte if the plaintiff’s claims lack 10 an arguable basis either in law or in fact. This includes claims based on legal conclusions that are 11 untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a 12 legal interest which clearly does not exist), as well as claims based on fanciful factual allegations 13 (e.g., fantastic or delusional scenarios). Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); McKeever 14 v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 15 Under the Due Process Clause of the Fourteenth Amendment, “No State shall ... deprive any 16 person of life, liberty, or property, without due process of law.” U.S. Const., Amend. XIV § 1. This 17 clause guarantees the government provide procedural due process when it dispossesses an individual 18 of a liberty or property interest. Armstrong v. Manzo, 380 U.S. 545, 550 (1965). To state a claim 19 for procedural due process, a plaintiff must show: “(1) a liberty or property interest protected by the 20 Constitution; (2) a deprivation of the interest by the government, and (3) lack of process.” Portman 21 v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). The amount of process required varies 22 depending on the circumstances; however, courts generally rely on the following factors: the private 23 interest that will be impacted by the government’s actions; the risk of an erroneous deprivation and 24 the probable value of additional or substitute procedural safeguards; and the government’s interest. 25 Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). 26 27 1 II. Discussion 2 Plaintiff’s initiating document, a Mandamus Affidavit, fails to comply with LSR 2-1 3 requiring the use of the Court’s form to initiate a complaint.1 For this reason alone, Plaintiff’s 4 initiating document cannot commence a civil case in this Court.2 5 Plaintiff appears to name the State of Nevada and Clark County’s Eighth Judicial District 6 Court as Defendants. ECF No. 1 at 1. However, Plaintiff can raise no 42 U.S.C. § 1983 claims 7 against the State of Nevada as Eleventh Amendment sovereign immunity bars such actions. Will v. 8 Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) (holding that states are not persons for 9 purposes of Section 1983); Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th 10 Cir. 1991) (holding that “[t]he Eleventh Amendment prohibits federal courts from hearing suits 11 brought against an unconsenting state” and that “[t]he Eleventh Amendment’s jurisdictional bar 12 covers suits naming state agencies and departments as defendants, and applies whether the relief 13 sought is legal or equitable in nature”); NRS § 41.031(3) (stating that the State of Nevada does not 14 waive its Eleventh Amendment immunity). Therefore, claims against the State of Nevada fail as a 15 matter of law and are properly dismissed with prejudice. 16 The Eighth Judicial District Court, and all state courts in Nevada, are arms of the State. 17 “Nevada has eleven judicial districts making up the state’s general jurisdiction courts. These district 18 courts serve Nevada’s 17 counties. The 11 [j]udicial [d]istricts are served by approximately 82 19 District Court judges who … [preside] in their elected counties but have jurisdiction to serve in any 20 district court in the state”; and “the court serves as the trial court for Nevada and is part of the judicial 21 branch of state government as set forth by the Nevada Constitution.” 22 http://www.clarkcountycourts.us/general. As an arm of the State of Nevada, the Eighth Judicial 23 District Court is immune from suit under 42 U.S.C. § 1983. Foley v. Graham, Case No. 2:16-cv- 24 1871-JAD-VCF, 2016 WL 11185427, at *3 (D. Nev. Sept. 13, 2016). For this reason, the Court 25 recommends dismissing with prejudice all claims alleged against the Eighth Judicial District Court.
26 1 LSR (Local Special Rule) 2-1 states: “A civil-rights complaint filed by a person who is not represented by an attorney must be submitted on the form provided by this court or must be legible and contain substantially all the 27 information called for by the court’s form.” 1 To the extent Plaintiff seeks to file a claim against Clark County, he fails to do so under 2 Monell v. Dept. of Soc. Servs, 436 U.S. 658 (1978). Under Monell, municipalities such as Clark 3 County are only liable for the infringement of constitutional rights under limited circumstances not 4 alleged in Plaintiff’s Mandamus Affidavit (which is largely incomprehensible). A plaintiff asserting 5 a constitutional claim against a municipality like Clark County under Monell must, at a minimum, 6 allege: (1) the plaintiff had “a constitutional right of which he was deprived; (2) the municipality 7 had a policy; (3) the policy amounts to deliberate indifference to his constitutional right; and (4) the 8 policy is the moving force behind the constitutional violation.” Gordon v. County of Orange, 6 F.4th 9 961, 973 (9th Cir. 2021) (internal quotation marks and citation omitted). Further, before a Monell 10 claim will proceed to litigation, a plaintiff must allege one of three liability theories. Thomas v. 11 County of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014) (per curiam). A Clark County may be 12 held liable when it acts “pursuant to an expressly adopted official policy.” Id. (citing Monell, 436 13 U.S. at 694); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). Alternatively, Clark County may be 14 held liable for a “longstanding practice or custom” that violates a constitutional right. Thomas, 763 15 F.3d at 1170 (citation omitted). Finally, the County may be liable under Section 1983 when “‘the 16 individual who committed the constitutional tort was an official with final policy-making authority’ 17 or such an official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” 18 Clouthier v. County of Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010) (quoting Gillette v. 19 Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992), overruled on other grounds by Castro v. County 20 of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016). 21 Plaintiff’s Mandamus Affidavit fails to state a coherent claim against Clark County and, for 22 this reason, claims asserted against this Defendant are dismissed without prejudice and one 23 opportunity to amend. 24 III. Recommendations 25 IT IS HEREBY RECOMMENDED that all claims asserted by Plaintiff against the State of 26 Nevada and the Eighth Judicial District Court be dismissed with prejudice as these entities are 27 immune from suit. 1 IV. Order 2 IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in forma pauperis (ECF 3 No. 1) is GRANTED. 4 IT IS FURTHER ORDERED that Plaintiff’s Mandamus Affidavit (ECF No. 1-1) must be 5 filed on the docket. 6 IT IS FURTHER ORDERED that to the extent Plaintiff’s Mandamus Affidavit is intended 7 to be a complaint, and that complaint seeks to state a claim against Clark County, the Affidavit is 8 dismissed without prejudice and with one opportunity to amend. 9 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff the Court’s form 10 civil rights complaint and instructions for filing the same. 11 IT IS FURTHER ORDERED that if Plaintiff chooses to file a complaint against Clark 12 County he must do so no later than August 7, 2026. The complaint must include factual allegations 13 sufficient to state a claim against Clark County under the Monell standard stated above. Plaintiff’s 14 allegations must be coherent, short, and plainly stated so that the Defendant may understand what is 15 alleged and respond to the complaint. 16 IT IS FURTHER ORDERED that failure to comply with the substance of this Order will 17 result in a recommendation that this matter be dismissed with prejudice. 18 Dated this 7th day of July, 2026.
20 ELAYNA J. YOUCHAH 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 1 NOTICE 2 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be in 3 writing and filed with the Clerk of the Court within 14 days of service of this document. The Supreme 4 Court has held that the courts of appeal may determine that an appeal has been waived due to the 5 failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This 6 circuit has also held that (1) failure to file objections within the specified time and (2) failure to 7 properly address and brief the objectionable issues waives the right to appeal the District Court’s 8 order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 9 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27