1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 MIKE E. SIMONS, Case No.: 3:26-cv-00155-MMD-CSD
4 Plaintiff Order
5 v. Re: ECF Nos. 1, 1-1, 1-4
6 DOUGLAS COUNTY SHERIFF’S OFFICE, et al., 7 Defendants 8
9 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 1), a pro se 10 complaint (ECF No. 1-1), and a motion to stay proceedings (ECF No. 1-4). 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 In his pro se complaint filed pursuant to 42 U.S.C. § 1983, Plaintiff sues multiple 16 Defendants for events that occurred during a roadside arrest. (ECF No. 1-1 at 2). Plaintiff sues 17 (1) Douglas County Sheriff’s Office; (2) Deputy Sheriff Tyree Holdridge; (3) Deputy Sheriff 18 Richard Rodriguez; (4) Deputy Sheriff Keenan Copp; (5) Deputy Sheriff Sal Derosa; and (6) 19 Deputy Sheriff Mark Brown. 20 The complaint alleges the following facts. 21 On March 6, 2024, Defendants seized Plaintiff on a public road without probable cause. 22 Plaintiff was not “committing a crime or acting suspiciously.” During the arrest, Holdridge 23 applied a “forceful wrist compliance technique” upon Plaintiff, then proceeded to disarm 1 Plaintiff despite no showing of “threat or aggression.” Holdridge and Rodriguez then placed 2 Plaintiff in handcuffs and conducted an unlawful search. Finally, Plaintiff alleges that Holdridge 3 committed “financial theft” while transporting Plaintiff and his property. He asserts that 4 Holdridge turned off his body-worn camera during the transport, and that although Plaintiff had
5 approximately $8,400 in cash at the time of transport, only $7,900 was accounted for during 6 booking. (ECF No. 1-1 at 2.) 7 Plaintiff asserts that the defendants violated his rights under the First, Second, Fourth, 8 Fourteenth, Fifth, Eighth, and Ninth Amendments. (Id. at 2-3). 9 1. Douglas County Sheriff’s Office 10 A public agency is not a person or entity subject to suit unless that agency is a separate 11 legal entity. Hervey v. Estes, 65 F.3d 784, 791-92 (9th Cir. 1995). Applying Federal Rule of 12 Civil Procedure 17(b)1, the Ninth Circuit has held that state law determines the issue of whether 13 a department of a municipality may sue or be sued. See e.g. Streit v. County of Los Angeles, 236 14 F.3d 552, 565 (9th Cir. 2001).
15 In Nevada, each county (or incorporated city or town within the county) is a political 16 subdivision of the state and an independent legal entity, which means it can sue or be sued. See 17 Clark County v. Lewis, 88 Nev. 254, 498 P.2d 363, 365 (Nev. 1972); Nev. Rev. Stat. § 280.080; 18 id. § 41.0305. A department of a county, city or town, however, “may not, in the department 19 name, sue or be sued” without statutory authorization. See Wayment v. Holmes, 912 P.2d 816, 20 819 (Nev. 1996) (concluding that the “Washoe County District Attorney’s office is not a suable 21 entity because it is a department of Washoe County, not a political subdivision” and noting the 22
23 1 Rule 17(b) states that capacity to sue or be sued (other than for an individual or corporation) is determined by the law of the state where the court is located. Fed. R. Civ. P. 17(b)(3). 1 State had not waived immunity on behalf of its departments of political subdivisions so the 2 District Attorney’s Office had not been conferred the power to sue or be sued) (citing Nev. Rev. 3 Stat. § 41.031); see also Wright v. City of Las Vegas, 395 F. Supp. 2d 789, 794 (S.D. Iowa 2005); 4 Schneider v. Elko County Sheriff’s Dep’t, 17 F.Supp.2d 1162, 1165 (D. Nev. 1998) (finding that
5 Elko County Sheriff's Department lacked capacity to be sued). 6 If a plaintiff improperly names a city or county department that lacks capacity to be sued, 7 the court may order the proper party (generally the county or city) be substituted into the case. 8 Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015). 9 Douglas County Sheriff’s Office lacks the capacity to be sued and must be dismissed. 10 Even assuming Plaintiff had named the correct entity -- Douglas County -- he has not 11 stated any claim against it. A municipality, including a county, can be liable for the infringement 12 of constitutional rights only under certain circumstances. Monell v. Dep’t of Soc. Servs., 436 U.S. 13 658, 690-95 (1978). A municipality may not be sued under a respondeat superior theory because 14 it employed an alleged wrongdoer. Horton by Horton v. City of Santa Maria, 915 F.3d 592, 603
15 (9th Cir. 2019). Rather, a municipality may be liable under § 1983 for “constitutional injuries 16 pursuant to (1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, 17 supervise or discipline; or (4) a decision or act by a final policymaker.” Id. at 602-03. “To 18 impose liability on a municipality under Section 1983, a plaintiff must prove: “(1) [the plaintiff] 19 had a constitutional right of which he was deprived; (2) the municipality had a policy; (3) the 20 policy amounts to deliberate indifference to [the plaintiff’s] constitutional right; and (4) the 21 policy is the moving force behind the constitutional violation.” Gordon v. County of Orange, 6 22 F.4th 961, 973 (9th Cir. 2021) (Gordon II) (internal quotation marks and citation omitted). 23 1 The complaint does not allege that Plaintiff’s injuries were the result of a custom, policy, 2 failure to train, supervise or discipline, or a decision or act by a final policymaker. The complaint 3 may not therefore proceed against Douglas County. However, should Plaintiff believe he could 4 state a claim against the county, he will be granted leave to file an amended complaint naming
5 the county and identifying the factual basis for its alleged liability. 6 2. First Amendment 7 Plaintiff asserts that defendants violated his First Amendment right to free speech. 8 However, he identifies no facts to support this claim nor does he identify the theory upon which 9 his claim is based. To the extent Plaintiff’s claim is one of retaliation, he does not allege what 10 protected conduct he engaged in, what adverse action the defendants took, or any facts to suggest 11 a plausible claim that defendants’ actions were taken because of Plaintiff’s protected conduct.2 12 Plaintiff’s First Amendment claim is therefore dismissed, without prejudice, with leave to 13 amend. 14 3. Second Amendment
15 “The Second Amendment is not implicated by the seizure of individual firearms.” 16 Fairbanks v. O’Hagan, 255 F. Supp. 3d 239, 245 (D. Mass. 2017); see also Rodgers v. Knight, 17 781 F.3d 932, 941–42 (8th Cir. 2015) (“Lawful seizure and retention of firearms, however, does 18
19 2 To state a First Amendment retaliation claim, a plaintiff must plausibly allege that: (1) a state actor took adverse action against the plaintiff; (2) because of the plaintiff’s protected conduct; (3) 20 the adverse action chilled the plaintiff’s exercise of First Amendment rights; and (4) the action did not reasonably advance a legitimate governmental objective. Rhodes v. Robinson, 408 F.3d 21 559, 567–68 (9th Cir. 2005). The plaintiff must show “not only that the official acted with a retaliatory motive and that the plaintiff was injured, but also that the motive was a ‘but-for’ cause 22 of the injury.” Nieves v. Bartlett, 587 U.S. 391, 391 (2019). In a First Amendment retaliatory arrest claim, plaintiffs must generally plead and prove the absence of probable cause. Hartman v. 23 Moore, 547 U.S. 250, 251 (2006) (holding that the existence of probable cause suggests the arrest would have occurred regardless of retaliatory motive). 1 not violate the Second Amendment. Indeed, this court has held that even the unlawful retention 2 of specific firearms does not violate the Second Amendment, because the seizure of one firearm 3 does not prohibit the owner from retaining or acquiring other firearms.”). Even if seizure of 4 single firearm could state a Second Amendment claim, the Second Amendment is not violated by
5 the “mere occurrence of a firearm seizure”; a viable Second Amendment claim would require 6 something more. Jackson v. Fed. Bureau of Investigation, 784 F. Supp. 3d 1260, 1271 (D. Ariz. 7 2025) (citing Partin v. Gevatoski, No. 6:19-CV-1948-AA, 2020 WL 4587386, at *4 (D. Or. Aug. 8 10, 2020)); see also Sutterfield v. City of Milwaukee, 870 F. Supp. 2d 633, 642 (E.D. Wis. 2012), 9 aff'd, 751 F.3d 542 (7th Cir. 2014). 10 Plaintiff alleges that Holdridge and Rodriguez violated his Second Amendment rights by 11 disarming him during his detention. Although Plaintiff does not explicitly state as much, the facts 12 alleged in the complaint support the reasonable inference that Plaintiff was arrested and 13 transported to the station. “Given the arrest of the gun’s owner . . . , public safety required the 14 temporary seizure of the weapon.” Hopkins v. Claroni, No. 1:13-CV-229-DBH, 2015 WL
15 2371654, at *6 (D. Me. May 18, 2015) (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). 16 As alleged, Plaintiff has failed to state a colorable Second Amendment claim. 17 Rather than the Second Amendment, the seizure of Plaintiff’s firearm is properly 18 evaluated as a Fourth Amendment unreasonable seizure claim, which the court discusses infra. 19 See Graham v. Connor, 490 U.S. 386, 395 (1989). 20 4. Ninth Amendment 21 The Ninth Amendment “has never been recognized as independently securing any 22 constitutional right, for purposes of pursuing a civil rights claim.” Strandberg v. City of Helena, 23 791 F.2d 744, 748 (9th Cir. 1986); see also Bossart v. Cnty. of King, No. 2:25-CV-00975-JNW, 1 2025 WL 2614110, at *2 (W.D. Wash. Sept. 10, 2025) (“This rule is well-established and 2 forecloses any Section 1983 claim based solely on the Ninth Amendment.”). Plaintiff’s claims, to 3 the extent they are asserted under the Ninth Amendment, must be dismissed. 4 5. Fifth Amendment
5 The Due Process Clause of the Fifth Amendment applies only to actions of the federal 6 government—not to those of state or local governments. Schweiker v. Wilson, 450 U.S. 221, 227 7 (1981). Plaintiff’s allegations lie against state and local actors and thus, to the extent they are 8 asserted under the Fifth Amendment, must be dismissed. 9 6. Eighth Amendment 10 The Eighth Amendment prohibition of cruel and unusual punishment was designed to 11 protect those convicted of a crime. Whitley v. Albers, 475 U.S. 312, 327 (1986) (“the Eighth 12 Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain 13 in penal institutions, serves as the primary source of substantive protection to convicted 14 prisoners”); Hughes v. Rodriguez, 31 F.4th 1211, 1221 (9th Cir. 2022) (Eighth Amendment
15 applies to convicted prisoners (both inside and outside the walls of the prison)). The Eighth 16 Amendment does not appear to apply to Plaintiff’s claims and will therefore be dismissed.3 17 7. Fourteenth Amendment 18 Plaintiff asserts that his due process rights to be free from unreasonable force and 19 deprivation of liberty without due process were violated. 20 Plaintiff’s claim of unreasonable force and deprivation of liberty without due process are 21 both properly evaluated under the Fourth, not the Fourteenth, Amendment. Graham, 490 U.S. at 22
3 Plaintiff has separately raised a Fourth Amendment excessive force claim. The contentions that 23 he might have been intending to raise under the cruel and unusual punishment clause will be evaluated in connection therewith. 1 395. Plaintiff’s Fourteenth Amendment claim, to the extent it is based on unreasonable force and 2 deprivation of liberty, will be dismissed. 3 8. Fourth Amendment 4 The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
5 houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend IV. 6 As noted above, Plaintiff’s claims of search and seizure of his person, seizure of his property, 7 and excessive force are all properly evaluated under the Fourth Amendment. 8 a. Search and Seizure of Person 9 The Fourth Amendment is violated when a person is unreasonably seized. Graham, 490 10 U.S. at 395-96; see also Brower v. Cnty. of Inyo, 489 U.S. 593, 595-600 (1989). In general, 11 “every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable 12 unless it is supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 700 (1981). 13 “Probable cause exists if the arresting officers had knowledge and reasonably trustworthy 14 information of facts and circumstances sufficient to lead a prudent person to believe that [the
15 arrestee] had committed or was committing a crime.” Gravelet-Blondin v. Shelton, 728 F.3d 16 1086, 1097-98 (9th Cir. 2013) (citation and quotation marks omitted). 17 However, even in the absence of probable cause, officers may stop and briefly detain a 18 person for investigative purposes if they have “a reasonable suspicion supported by articulable 19 facts for suspected criminal activity.” Terry v. Ohio, 392 U.S. 1, 30 (1968). “The officer, of 20 course, must be able to articulate something more than an inchoate and unparticularized 21 suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks 22 and citation omitted). 23 1 Where “a search is undertaken by law enforcement officials to discover evidence of 2 criminal wrongdoing, . . . reasonableness generally requires the obtaining of a judicial warrant.” 3 Riley v. California, 573 U.S. 373, 382 (2014). “In the absence of a warrant, a search is 4 reasonable only if it falls within a specific exception to the warrant requirement.” Id.
5 Plaintiff alleges that Defendants unlawfully and without probable cause seized and then 6 searched him without probable cause, and that he was not committing a crime or acting 7 suspiciously when they did so. 8 While Plaintiff might be able to state a claim for unreasonable search and seizure, the 9 complaint at this juncture lacks sufficient facts to find a plausibly alleged claim. There is no 10 explanation as to what Plaintiff was doing when he was stopped by the officers, what the officers 11 claimed to be stopping him for, or why he was – evidently – placed under arrest and transported 12 to the station. There is no sequence of events, which means it is unclear whether Plaintiff alleges 13 that he was immediately arrested or whether the interaction began as a Terry stop before turning 14 into an arrest.
15 The facts surrounding the “search” are also entirely unclear – such as when it happened 16 during the sequence of events and what (if anything) was found as a result. Finally, the fact that 17 Plaintiff was apparently arrested and booked raises the question of whether Plaintiff is currently 18 facing any state charges arising out of the events about which he complains, and, if so, what 19 those charges might be.4 All of these facts are essential to evaluating whether Plaintiff has stated 20 a colorable Fourth Amendment search and seizure claim that may proceed in this action. 21
22 4 Plaintiff has filed a motion to stay proceedings on the grounds that he is awaiting the result of “related state court proceedings,” which certainly suggests he is facing charges arising out of this 23 incident, but because the “related state court proceedings” could be anything, the court cannot reasonably infer as much at this point. 1 Accordingly, Plaintiff’s claim of a Fourth Amendment violation based on the search and 2 seizure of his person will be dismissed without prejudice, with leave to amend. 3 b. Seizure of Property 4 As previously noted , the seizure of Plaintiff’s firearm is properly evaluated as a Fourth
5 Amendment claim. Plaintiff may also be claiming an unreasonable seizure of his cash, although 6 that is less clear. 7 “A ‘seizure’ of property” within the meaning of the Fourth Amendment “occurs when 8 ‘there is some meaningful interference with an individual’s possessory interests in that 9 property.” Soldal v. Cook Cnty., Ill., 506 U.S. 56, 61 (1992). “Violation of the Fourth 10 Amendment requires an intentional acquisition of physical control.” Brower v. Cnty. of Inyo, 489 11 U.S. 593, 596 (1989). “A seizure conducted without a warrant is ‘per se unreasonable under the 12 Fourth Amendment—subject only to a few specifically established and well delineated 13 exceptions.’” United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001). Determining whether 14 a seizure is unreasonable requires balancing of the government’s interest in seizing the property
15 against the individual’s interest in his property. See, e.g., Lavan v. City of Los Angeles, 693 F.3d 16 1022, 1030 (9th Cir. 2012). 17 “It’s well established that ‘a seizure lawful at its inception can nevertheless violate the 18 Fourth Amendment because its manner of execution unreasonably infringes possessory 19 interests.’” Brewster v. Beck, 859 F.3d 1194, 1196 (9th Cir. 2017). “The Fourth Amendment ‘is 20 implicated by a delay in returning the property, whether the property was seized for a criminal 21 investigation, to protect the public, or to punish the individual.’” Id. at 1197. 22 If the property seized is the basis of any pending criminal charges, a plaintiff may not 23 assert an unreasonable seizure claim unless and until the charges are dismissed or resulting 1 conviction has been overturned. See Harvey v. Waldron, 110 F.3d 1008, 1115 (9th Cir. 2000), 2 overruled in part on other grounds by Wallace v. Kato, 549 U.S. 384, 393-94 (2007). 3 For the same reasons discussed with respect to the search and seizure of his person, 4 Plaintiff’s seizure of property claim lacks sufficient factual allegations to state a plausible Fourth
5 Amendment claim. Accordingly, the court will dismiss the Fourth Amendment unreasonable 6 seizure of property claim, without prejudice, with leave to amend. 7 c. Excessive Force 8 Claims of excessive force during an arrest are also subject to an objective reasonableness 9 standard. Graham, 490 U.S. at 395. 10 In assessing the objective reasonableness of a particular use of force, [the court] consider[s]: (1) “the severity of the intrusion on the individual’s Fourth 11 Amendment rights by evaluating the type and amount of force inflicted,” (2) “the government’s interest in the use of force,” and (3) the balance between “the 12 gravity of the intrusion on the individual” and “the government's need for that intrusion. 13 14 Lowry v. City of San Diego, 858 F.3d 1248, 1256 (9th Cir. 2017); see also Bryan v. MacPherson, 15 630 F.3d 805, 823–24 (9th Cir. 2010) (“Stated another way, we must ‘balance the amount of 16 force applied against the need for that force.’”). 17 This inquiry “requires careful attention to the facts and circumstances of each particular 18 case, including the severity of the crime at issue, whether the suspect poses an immediate threat 19 to the safety of the officers or others, and whether he is actively resisting arrest or attempting to 20 evade arrest by flight.” Graham, 490 U.S. at 395 (citation omitted). The most important is 21 “whether the subject posed an ‘immediate threat to the safety of the officers or others.’” Mattos 22 v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (quoting Smith v. City of Hemet, 394 23 F.3d 689, 702 (9th Cir. 2005) (en banc)). 1 These factors are not exhaustive, and courts are “to examine the totality of the 2 circumstances and consider ‘whatever specific factors may be appropriate in a particular 3 case[.]’” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Franklin v. 4 Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). Courts conduct their evaluation of reasonableness
5 “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 6 hindsight.” Graham, 490 U.S. at 396 (citation omitted). 7 “‘Not every push or shove, even if it may later seem unnecessary in the peace of a 8 judge’s chambers,’ ... violates the Fourth Amendment.” Id. (citation omitted). “The calculus of 9 reasonableness must embody allowance for the fact that police officers are often forced to make 10 split-second judgments−in circumstances that are tense, uncertain, and rapidly evolving−about 11 the amount of force that is necessary in a particular situation.” Id. at 396-97. 12 Plaintiff asserts that Holdridge applied a “forceful wrist compliance technique” while 13 Plaintiff was not engaging in threatening or aggressive behavior. Plaintiff could potentially state 14 an excessive force claim, but on the facts alleged here he has not done so. The descriptor
15 “forceful wrist compliance technique” provides no insight into the amount of force used, what 16 the technique entailed, or whether Plaintiff suffered any injury.5 While Plaintiff alleges that his 17 left wrist was “overextended,” he does not explain what this means in terms of injury and pain. 18 These factors are key in evaluating whether Plaintiff has plausibly alleged a colorable Fourth 19 Amendment excessive force claim. The lack of these facts means Plaintiff has failed to allege 20 any colorable claim. Accordingly, the Fourth Amendment excessive force claim will be 21 dismissed without prejudice, with leave to amend. 22
23 5 Plaintiff also asserts he suffered “sternum pain,” but it is unclear how, if at all, this is attributable to the “wrist compliance technique.” 1 9. “Financial theft” 2 Plaintiff alleges that at the time of his arrest, he had $8,400, but at the time of booking, 3 only $7,900 was documented. He also alleges that Holdridge turned off his body camera while 4 transporting Plaintiff. The inference appears to be that Plaintiff believes Holdridge stole $500
5 from him during the transport to the station. 6 It is unclear whether Plaintiff intends to assert this as a constitutional claim or whether he 7 alleges a state-law conversion claim. If Plaintiff intends to assert a constitutional claim, he must 8 clearly identify it as such.6 9 As it stands, Plaintiff’s allegations – minimal as they are – are sufficient to state a 10 colorable claim of conversion under Nevada law.7 However, this state law claim may proceed 11 under the court’s supplemental jurisdiction, if at all. As Plaintiff has not yet sufficiently alleged 12 any claim over which this court has subject matter jurisdiction, his state-law conversion claim 13 may not move forward at this time. 14
15 6 It is not clear that Plaintiff would be able to state a constitutional claim. “[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the 16 procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 17 533 (1984). “The availability of a tort suit, for defendants’ random, unanticipated acts, satisfies the due process clause. New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1305 (9th Cir. 18 1989) (internal alterations and quotation marks omitted). Because Nevada law recognizes the tort claim of conversion, which is an adequate postdeprivation remedy, no Fourteenth Amendment 19 due process claim could lie here. While Plaintiff could possibly state a Fourth Amendment claim for the stolen money, defendants 20 would, in all likelihood, be entitled to qualified immunity on such a claim. See Gentry v. Manteca Police Dep’t, No. 2:22-CV-00720-DC-JDP, 2025 WL 2829423, at *7-9 (E.D. Cal. Oct. 21 6, 2025) (finding police officers entitled to qualified immunity as to allegation of stolen property because in 2020 it was not clearly established that theft of property violated the Fourth 22 Amendment). Cf. Jessop v. City of Fresno, 936 F.3d 937, 940-42 (9th Cir. 2019). 7 “Conversion is a distinct act of dominion wrongfully exerted over personal property in denial 23 of, or inconsistent with, title or rights therein or in derogation, exclusion or defiance of such rights” Edwards v. Emperor's Garden Rest., 130 P.3d 1280, 1287 (Nev. 2006). 1 10. Personal Participation 2 Section 1983 “creates a cause of action against a person who, acting under color of state 3 law, deprives another of rights guaranteed under the Constitution.” Jones v. Williams, 297 F.3d 4 930, 934 (9th Cir. 2002). “In order for a person acting under color of state law to be liable under
5 section 1983 there must be a showing of personal participation in the alleged rights 6 deprivation[.]” Id. (citations omitted). In other words, the plaintiff “must show that each 7 defendant personally played a role in violating the Constitution." Hines v. Yousef, 914 F.3d 1218, 8 1228 (9th Cir. 2019), cert. denied sub nom., Smith v. Schwarzenegger, 589 U.S. 928 (2019). 9 “An official is liable under § 1983 only if ‘culpable action, or inaction, is directly attributed to 10 them.’” Id. (quoting Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011)). 11 As it stands, the complaint alleges no personal participation in any constitutional 12 violation by Copp, DeRosa, or Brown. Referring to “Defendants” as those responsible for seizing 13 Plaintiff is insufficient to allege personal participation. Should Plaintiff seek to pursue his 14 constitutional claims against these defendants, he should file an amended complaint clearly
15 identifying the actions they took that contributed to the alleged violations of his constitutional 16 rights. 17 III. CONCLUSION 18 (1) Plaintiff’s IFP application (ECF No. 1) is GRANTED. 19 (2) The Clerk shall FILE the Complaint (ECF No. 1-1). 20 (3) The Complaint is DISMISSED WITHOUT PREJUDICE, with leave to amend. 21 (4) The Clerk shall SEND Plaintiff the form and instructions for a civil rights complaint 22 by a non-prisoner. 23 1 (5) Plaintiff has 30 DAYS from the date of this Order to file a first amended complaint 2 curing the deficiencies noted above. The first amended complaint must be complete in 3 and of itself without referring to or incorporating by reference any previous complaint. 4 Any allegations, parties, or requests for relief from a prior complaint that are not carried 5 forwarded in the amended complaint will no longer be before the court. Plaintiff shall 6 include this case number and “First Amended Complaint” in the caption of the complaint. 7 If Plaintiff fails to file an amended complaint within 30 days, the court may recommend 8 to the District Judge that this action be dismissed. 9 (6) The court will defer a recommendation on the motion to stay (ECF No. 1-4) pending 10 screening of any amended complaint. 11 (7) In accordance with Plaintiff's request (ECF No. 4), the Clerk shall SEND Plaintiff a 12 copy of the advisory letter issued on March 5, 2026, and all future filings to Plaintiff at 13 his physical address 15050 Pinion Dr., Reno, NV 89521. 14, 1T IS SO ORDERED. 15]| Dated: July 6, 2026 6 CS Ox Craig S. Denney 17 United States Magistfate Judge 18 19 20 21 22 23