Mitchell v. Las Vegas Metropolitan Police Department

• Court: District Court, D. Nevada
• Decided: January 13, 2021
• Docket: 2:18-cv-00646
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 RICHARD L. MITCHELL, Case No.: 2:18-cv-00646-RFB-EJY

5 Plaintiff, ORDER 6 v. and REPORT AND RECOMMENDATION 7 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Re: Plaintiff’s Amended Complaint 8 (ECF No. 18) Defendants. 9 10 Presently before the Court are Plaintiff’s Amended Complaint (ECF No. 18) and Ex Parte 11 Motion for Appointment of Counsel. ECF No. 19. 12 I. Background 13 On January 24, 2019, Judge George Foley, Jr. (Ret.) granted Plaintiff’s Application for Leave 14 to Proceed in forma pauperis (ECF No. 1) and dismissed Plaintiff’s Complaint (ECF No. 1-1) 15 without prejudice with leave to amend because Plaintiff failed to allege sufficient facts to state claims 16 against Defendants Las Vegas Metropolitan Police Department (the “LVMPD”) and one John Doe 17 LVMPD Officer. ECF No. 4. After a series of requests for extensions that were granted by the 18 Court, Plaintiff was given until June 17, 2019 to file an amended complaint. ECF Nos. 7, 10, 14. 19 Plaintiff failed to file an amended complaint by the deadline set by the Court leading the 20 Court to enter an order to show cause why this matter should not be dismissed. ECF No. 15. Plaintiff 21 was warned that a “[f]ailure to timely respond to this Order to Show Cause [the “OSC”] shall result 22 in a recommendation to the district judge that this case be dismissed.” Plaintiff failed to timely 23 respond to the Court’s OSC, and instead filed the present Amended Complaint fourteen months later 24 on October 23, 2020. ECF No. 18. Despite grounds to recommend dismissal, the undersigned 25 screens Plaintiff’s Amended Complaint and makes the following recommendations. 26 I. PLAINTIFF’S AMENDED COMPLAINT 27 Plaintiff’s Amended Complaint alleges the following facts. On December 8, 2017, two 1 pulled in behind Plaintiff’s vehicle while he was sitting in his car at a Terrible Herbst gas station. 2 Id. at 1, 3. These Officers allegedly “accosted” him for crimes supposedly committed earlier that 3 day. Id. at 3. Plaintiff stepped out of his vehicle with a baseball bat and asked the Officers “what[] 4 the problem” was. Id. (internal alterations omitted). Plaintiff alleges that Officer Stephen, without 5 responding to Plaintiff’s question, shot and struck Plaintiff’s left hand with bean bags four times. Id. 6 at 4 (internal alterations omitted). Officer Garcia is alleged to have then shot Plaintiff with “live 7 ammo” four times, hitting Plaintiff once in the right leg.1 Id. (internal alterations omitted). Plaintiff 8 was arrested as indicated in the arrest reports of the incident. Id. at 5 (internal alterations omitted). 9 Plaintiff maintains Officers Stephen and Garcia should have handled his arrest differently as 10 Plaintiff was “intoxicated” and “on the verge of a mental breakdown.” Id. at 4 (internal alterations 11 omitted). Plaintiff insists he posed no threat as he was “at least twenty to thirty feet away” from the 12 Officers “at all times.” Id. at 6 (internal alterations omitted). Plaintiff also claims he was using the 13 baseball bat as a “hood-prop,” not as a weapon, and that he “never threatened anyone.” Id. at 4, 6 14 (internal alterations omitted). 15 Plaintiff brings this Section 1983 action against the State of Nevada, the LVMPD, and 16 Officers Stephen and Garcia in their individual and official capacities for arresting him with 17 excessive force in violation of his Eighth Amendment right against cruel and unusual punishment 18 and his Fourteenth Amendment right to equal protection under the law. Id. at 2, 4-6. Plaintiff seeks 19 compensatory and punitive damages. Id. at 8. 20 II. DISCUSSION

21 A. The Court recommends dismissing Plaintiff’s Section 1983 claims against the State of Nevada with prejudice as amendment is futile. 22 23 The Eleventh Amendment bars citizens from suing a state. U.S. CONST. amend. XI. The 24 United States Supreme Court holds that 42 U.S.C. § 1983 does not constitute an abrogation of a 25 state’s Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 338-40 (1979). Absent 26 waiver, a state is not subject to suit under Section 1983. Id.; see also Alabama v. Pugh, 438 U.S. 27 1 781, 782 (1978). The State of Nevada has declined to waive its immunity to suit under the Eleventh 2 Amendment. NRS 41.031(3). As Plaintiff’s Section 1983 claims against the State of Nevada fail as 3 a matter of law, the Court recommends these claims be dismissed with prejudice. Peck v. Nev., Case 4 No. 2:18-cv-00237-APG-VCF, 2018 WL 3312977, at *3 (D. Nev. July 5, 2018).

5 B. The Court recommends dismissing Plaintiff’s Section 1983 claims against the LVMPD without prejudice, with leave to amend. 6 7 A plaintiff seeking to hold a municipal defendant liable for constitutional violations under 8 Section 1983 cannot do so under a respondeat superior theory; instead, the plaintiff must allege that 9 his constitutional rights were violated pursuant to the defendant’s custom, practice, or policy. Monell 10 v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978); see also Shah v. Cnty. of 11 Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986) (providing that claims for municipal liability under 12 Section 1983 can be “based on nothing more than a bare allegation that the individual officers’ 13 conduct conformed to official policy, custom, or practice.”) (internal citation omitted). This requires 14 “a direct causal link between a municipal policy or custom and the alleged constitutional violation.” 15 Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1075 (9th Cir. 2016) (internal citation omitted) (en 16 banc). 17 Plaintiff’s Section 1983 claims against the LVMPD fails because he does not allege his 18 constitutional rights were violated pursuant to the LVMPD’s custom, practice, or policy. Plaintiff 19 instead alleges the LVMPD should be held liable for the Officers’ failure to preserve “adequate body 20 camera footage of the excessive force shooting.” ECF No. 18 at 5. However, Section 1983 imposes 21 liability upon a municipality for constitutional deprivations resulting from actions taken “pursuant 22 to governmental custom,” as opposed to an individual employee’s purported failure to comply with 23 said custom. Monell, 436 U.S. at 691 (internal quotation marks omitted) (emphasis added). Plaintiff 24 also does not allege any widespread failure on the part of LVMPD Officers to preserve body camera 25 footage of shootings during arrests. Bd. of Cnty. Com’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 26 397, 404 (1997) (internal citation and quotation marks omitted). 27 Therefore, Plaintiff fails to state Section 1983 claims against the LVMPD. However, 1 1983 claims against the LVMPD be dismissed without prejudice with one final opportunity to 2 amend. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

3 C. The Court recommends dismissing with prejudice Plaintiff’s claims for money damages against the LVMPD Officers in their official capacities because 4 amendment is futile. 5 Plaintiff names the LVMPD Officers as defendants in their official and individual capacities. 6 ECF No. 18 at 2. However, the Eleventh Amendment “bars actions against state officers sued in 7 their official capacities for past alleged misconduct involving a complainant’s federally protected 8 rights, where the nature of the relief sought is retroactive, i.e., money damages, rather than 9 prospective, e.g., an injunction.” Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988) (internal citations 10 omitted). Thus, Plaintiff’s Section 1983 claims for money damages against the LVMPD Officers in 11 their official capacities fail as a matter of law. N. Nev. Ass’n of Injured Workers v. Nev. State Indus. 12 Ins. Sys., 807 P.2d 728, 732 (Nev. 1991). For this reason, the Court recommends dismissing as futile 13 and, therefore, with prejudice, all of Plaintiff’s claims seeking money damages for past harms 14 allegedly caused by Defendants Stephen and Garcia in their official capacities. Festa v. Sandoval, 15 Case No. 2:17-cv-00850-APG-NJK, 2020 WL 2114358, at *5 (D. Nev. May 4, 2020).

16 D. The Court recommends allowing Plaintiff leave to amend his Eighth Amendment claim, which the Court analyzes under the Fourteenth 17 Amendment, against Officer Stephen and orders the Fourth Amendment claim against Officer Garcia to proceed. 18 19 Government officials do not enjoy sovereign immunity under the Eleventh Amendment as 20 individuals and, therefore, money damages may be recovered from such officials if they are sued in 21 their personal capacities. Ruley v. Nev. Bd. of Prison Com’rs, 628 F.Supp. 108, 110 (D. Nev. 1986). 22 Here, Plaintiff sues LVMPD Officers Stephen and Garcia in their individual capacities for money 23 damages allegedly arising from excessive force associated with his arrest in violation of his Eighth 24 Amendment right against cruel and unusual punishment. ECF No. 18 at 2, 4-6. “Courts analyze 25 claims that law enforcement officers have used excessive force in the course of an arrest under the 26 Fourth Amendment to the United States Constitution,” not under the Eighth Amendment. Neal- 27 Lomax v. Las Vegas Metropolitan Police Dept., 574 F.Supp.2d 1170, 1184 (D. Nev. 2008), citing 1 386, 395 (1989). Liberally construed, Plaintiff’s Eighth Amendment claim is therefore analyzed as 2 a Fourth Amendment claim against the Officers for alleged use of excessive force at the time of 3 Plaintiff’s arrest. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

4 1. The Court recommends granting Plaintiff leave to amend to replead his Fourth Amendment excessive force claim against Officer Stephen. 5 6 The Fourth Amendment guarantees a citizen’s right to be free from “unreasonable searches 7 and seizures.” U.S. CONST. amend. IV. The “reasonableness” of a particular seizure, including an 8 arrest of a person, “depends not only on when it is made, but also on how it is carried out.” Graham, 9 490 U.S. at 395 (internal citations omitted). The relevant inquiry is “whether the officers’ actions 10 are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Id. at 397. 11 In determining the reasonableness of a seizure effected by force, a court must balance the 12 “nature and quality of the intrusion on the individual’s Fourth Amendment interests against the 13 countervailing government interests at stake.” Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 14 2003) (internal citation and quotation marks omitted). Courts evaluate the strength of the 15 government’s interest in using force—deadly or otherwise—by examining three nonexclusive 16 “Graham factors”: (1) “whether the suspect poses an immediate threat to the safety of the officers 17 or others,” (2) “the severity of the crime at issue,” and (3) “whether he is actively resisting arrest or 18 attempting to evade arrest by flight.” Glenn v. Wash. Cnty., 673 F.3d 864, 872 (9th Cir. 2011). The 19 “most important” factor in assessing the reasonableness of a seizure is whether the individual posed 20 an immediate threat to the safety of the officers or others. Bryan v. MacPherson, 630 F.3d 805, 826 21 (9th Cir. 2010) (internal citation and quotation marks omitted) (“Bryan”). These factors are not 22 exclusive; rather, courts “examine the totality of the circumstances and consider whatever specific 23 factors may be appropriate in a particular case.” Id. (internal citation and quotation marks omitted). 24 For example, the “quantum of force” used to arrest a suspect may constitute such a relevant factor. 25 Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir. 2010). With respect to bean bag guns specifically, 26 the Ninth Circuit states that “[a]lthough bean bag guns are not designed to cause serious injury or 27 death, a bean bag gun is considered a ‘less-lethal’ weapon, as opposed to a non-lethal weapon, 1 body, such as the eyes, throat, temple, or groin.” Glenn, 673 F.3d at 871 (internal brackets and 2 quotation marks omitted). Given the bean bag gun’s capabilities, “[s]uch force, though less than 3 deadly, . . . is permissible only when a strong governmental interest compels the employment of 4 such force.” Id. at 872 (internal citation omitted). 5 Plaintiff does not allege sufficient facts to state a Fourth Amendment excessive force claim 6 against Officer Stephen. Plaintiff’s allegation indicates he was not actively resisting arrest or 7 attempting to evade arrest by flight when the Officers arrived on scene, which undermines the 8 government’s interest in using less-lethal force. Glenn, 673 F.3d at 872. Plaintiff also contends he 9 was “on the verge of a mental breakdown” at the time of arrest. ECF No. 18 at 4. This allegation is 10 important because the governmental interest in deploying even “intermediate levels of force” is 11 diminished when an officer is confronted by an “emotionally disturbed individual.” Bryan, 630 F.3d 12 at 829. However, the most important factor the Court must consider, that of immediate threats to 13 officer and public safety, weighs against Plaintiff. 14 Plaintiff concedes he “immediately stepped out of his car with [a] baseball bat” when the 15 Officers pulled in behind his vehicle. ECF No. 18 at 3. Plaintiff alleges he was using the bat as a 16 “hood-prop,” and that he did not threaten the Officers with the bat. Id. at 4, 6. Plaintiff further 17 alleges he was “at least twenty to thirty feet away” from both Officers “at all times.” Id. at 6 (internal 18 alterations omitted). Nonetheless, a reasonable officer could have objectively perceived Plaintiff’s 19 exit of the vehicle, bat in tow, as an immediate threat to the safety of the officer or others. The Ninth 20 Circuit in Bryan stated that an “unarmed, stationary individual, facing away from an officer at a 21 distance of fifteen to twenty-five feet is far from an ‘immediate threat’ to that officer.” 630 F.3d at 22 827 (emphases added). Of course, the present factual circumstances are distinguishable from those 23 in Bryan because Plaintiff admits he exited his vehicle holding a bat, faced the Officers, and asked 24 them what their “problem” was. ECF No. 18 at 3. 25 The quantum of force deployed in the case at bar is also considered as Plaintiff alleges Officer 26 Stephen’s four bean bag rounds left Plaintiff with a “scar[] on [his] left hand.” Id. at 5. In Deorle 27 v. Rutherford, the Ninth Circuit found that shooting a suspect in the face with a bean bag from thirty 1 knocked the suspect off his feet, destroyed one of his eyes, and left a lead shot in his skull. 272 F.3d 2 1272, 1279-80 (9th Cir. 2001). 3 Finally, Plaintiff contends he committed “no crime,” but provides no information about the 4 “alleged crimes” the Officers were investigating. ECF No. 18 at 3-4. The lack of detail concerning 5 Plaintiff’s alleged crime(s) prevents the Court from assessing whether the “government’s need for 6 intrusion [on Plaintiff’s Fourth Amendment interests] was constitutionally reasonable.” Miller, 340 7 F.3d at 964 (internal citations omitted); Glenn, 673 F.3d at 872 (one of the factors used to evaluate 8 the strength of the government’s interest in the force deployed is the “severity of the crime at issue”). 9 Under the totality of the circumstances, the Court finds Plaintiff fails to state a Fourth 10 Amendment excessive force claim against Officer Stephen. Because amendment of this claim is not 11 necessarily futile, the Court recommends Plaintiff’s Fourth Amendment excessive force claim 12 against Defendant Stephen be dismissed without prejudice, with leave to amend. Cato, 70 F.3d at 13 1106.

14 2. Plaintiff sufficiently states a Fourth Amendment excessive force claim against Officer Garcia. 15 16 The use of deadly force is unequivocally a “seizure” within the meaning of the Fourth 17 Amendment. Tennessee v. Garner, 471 U.S. 1,7 (1985). As discussed above, when “determining 18 whether an officer’s use of force was reasonable, the court must consider the circumstances from the 19 perspective of a [objectively] reasonable officer at the scene of the incident.” Perrin v. Gentner, 177 20 F.Supp.2d 1115, 1118 (D. Nev. 2001) (internal citation omitted). With respect to deadly force, a 21 police officer may “not shoot to kill unless, at a minimum, the suspect presents an immediate threat 22 to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons.” 23 Id. at 1118-19 (internal citation omitted). Except if impracticable, an officer must issue a warning 24 before using deadly force. Jensen v. City of Oxnard, 145 F.3d 1078, 1086 (9th Cir. 1998). Further, 25 the Ninth Circuit confirms that an officer must use reasonable, non-deadly alternatives for 26 apprehending a suspect when such an alternative is available. Brower v. Cnty. of Inyo, 884 F.2d 27 1316, 1318 (9th Cir. 1989). 1 Plaintiff sufficiently alleges a Fourth Amendment excessive force claim against Officer 2 Garcia. It is true that an objectively reasonable officer in Officer Garcia’s position may have 3 believed Plaintiff presented an immediate threat by stepping out of his car holding a baseball bat; 4 however, there is nothing to suggest Officer Garcia gave a warning before deploying deadly force 5 or that it was impracticable to do so. Jensen, 145 F.3d at 1086. Moreover, even if Officer Garcia 6 gave an appropriate warning, his deployment of deadly force may have still been unreasonable 7 because Plaintiff contends that Officer Stephen just shot Plaintiff four times with bean bags. It is 8 arguable that a reasonable officer in Officer Garcia’s position would be aware of a reasonable, less- 9 lethal alternative (the bean bags) available to apprehend Plaintiff. Brower, 884 F.2d at 1318. 10 Plaintiff’s alleged distance of twenty to thirty feet away from the Officers, as well as his disturbed 11 emotional state, further potentially diminishes the reasonableness of Officer Garcia’s decision to 12 deploy deadly force. Hopkins v. Andaya, 958 F.2d 881, 886 (9th Cir. 1992) (the “car length” of 13 distance between the officer and his attacker weighed against the reasonableness of deadly force); 14 Bryan, 630 F.3d at 829 (the governmental interest in using deadly force is diminished when an officer 15 is confronted with an “emotionally disturbed individual”). In addition, not only is there no indication 16 to suggest Plaintiff was evading arrest when the Officers arrived on the scene, but Plaintiff alleges 17 that he was “knock[ed] . . . onto [the] floor” after being shot by Officer Garcia. ECF No. 18 at 2. In 18 sum, the totality of the circumstances of Plaintiff’s arrest question demonstrate that Plaintiff states a 19 colorable Fourth Amendment excessive force claim against Officer Garcia. This claim shall proceed 20 as pleaded in the Amended Complaint.

21 E. The Court recommends dismissing Plaintiff’s Fourteenth Amendment equal protection claim against the LVMPD Officers in their individual capacities 22 without prejudice with leave to amend. 23 To state a claim for violation of the Equal Protection Clause of the Fourteenth Amendment, 24 a plaintiff must demonstrate that a defendant acted with an intent or purpose to discriminate against 25 him based on his membership in a protected class.2 Barren v. Harrington, 152 F.3d 1193, 1194 (9th 26

2 A “claim for substantive due process violations arising under the Fourteenth Amendment would be 27 inappropriate where the Fourth Amendment is applicable,” as here, “but claims arising under the Fourteenth Amendment 1 Cir. 1998). “Intentional discrimination means that a defendant acted at least in part because of a 2 plaintiff’s protected status.” Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) 3 (internal citation omitted) (emphasis in original). 4 Plaintiff conclusively alleges the Officers violated his Fourteenth Amendment equal 5 protection rights (ECF No. 18 at 4-6), but he does not identify a membership in any protected class 6 or allege any facts to suggest that these Defendants “acted with an intent or purpose to discriminate.” 7 Barren, 152 F.3d at 1194. Even if liberally construed, Plaintiff’s conclusory allegations of official 8 participation in civil rights violations are insufficient to state a Section 1983 claim. Pena v. Gardner, 9 976 F.2d 469, 471 (9th Cir. 1992). 10 Plaintiff therefore fails to state an equal protection claim against Defendants Stephen and 11 Garcia. As this claim may be saved by amendment, the Court recommends dismissing Plaintiff’s 12 Fourteenth Amendment equal protection claims with leave to amend. Cato, 70 F.3d at 1106.

13 F. Plaintiff’s Motion for Appointment of Counsel (ECF No. 19) is denied without prejudice. 14 15 A pro se litigant does not have a constitutional right to appointed counsel upon filing a 42 16 U.S.C. § 1983 civil rights claim. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Rather, 17 when considering the potential appointment of counsel for a pro se plaintiff, the Court must consider 18 whether there are “exceptional circumstances” warranting such an appointment. 28 U.S.C. § 19 1915(e)(1); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The Ninth Circuit employs a two- 20 prong test to determine whether “exceptional circumstances” are present. Terrell v. Brewer, 935 21 F.2d 1015, 1017 (9th Cir. 1991). The Court must evaluate the “likelihood of success on the merits 22 and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal 23 issues involved.” Id. “Neither of these factors is dispositive and both must be viewed together 24 before reaching a decision on [a] request [for] counsel.” Wilborn v. Escalderon, 789 F.2d 1328, 25 1331 (9th Cir. 1986). 26 Plaintiff “alleges that the issues in this case are complex and that petitioner is unable to 27 adequately present [his] claims without the assistance of counsel.” ECF No. 19 at 2. Applying the 1 claim against Officer Garcia. However, even if the Court were to assume this case is legally complex 2 based on Plaintiff’s conclusory allegation, the lack of adequate legal knowledge is not an exceptional 3 circumstance warranting the appointment of counsel. Zamaro v. Moonga, 656 Fed.App’x 297, 299 4 (9th Cir. 2016) (finding a district court did not abuse its discretion in declining to request counsel 5 for a plaintiff who contended he lacked adequate knowledge of “complex legal . . . issues” in part 6 because his “situation was not exceptional in light of the legal competence of most prisoners in 7 similar situations”) (unpublished). In addition, Plaintiff has had no problem articulating his claims, 8 no matter how delayed his filings may have been. 9 Having presented no exceptional circumstance warranting court-appointed counsel, 10 Plaintiff’s Motion for Appointment of Counsel (ECF No. 19) is therefore denied without prejudice. 11 III. ORDER 12 Accordingly, 13 IT IS HEREBY ORDERED that Plaintiff’s Fourth Amendment excessive force claim against 14 LVMPD Officer Garcia shall proceed as stated in his Amended Complaint. 15 IT IS FURTHER ORDERED that the Clerk of the Court shall issue summonses to Defendant 16 Garcia and deliver one copy of the Amended Complaint (ECF No. 18) together with one copy of 17 this Order and Report and Recommendation to the U.S. Marshal for service. 18 IT IS FURTHER ORDERED that the Clerk of the Court shall mail one copy of the USM- 19 285 form to Plaintiff within five (5) court days of the date of this Order. 20 IT IS FURTHER ORDERED that Plaintiff shall have twenty (20) court days from the date 21 he receives the USM-285 form in which to return the completed forms to the U.S. Marshal. The 22 completed USM-285 form may be mailed to:

23 Gary G. Schofield U.S. Marshal, District of Nevada 24 Lloyd D. George Federal Courthouse 333 Las Vegas Boulevard S., Suite 2058 25 Las Vegas, NV 89101 26 IT IS FURTHER ORDERED that within twenty (20) court days after receiving the 27 completed USM-285 form, the U.S. Marshal shall attempt service on Defendant Garcia. 1 IT IS FURTHER ORDERED that within twenty (20) court days after Plaintiff receives a 2 copy of the USM-285 form from the U.S. Marshal that shows whether service was accomplished, 3 Plaintiff must file a notice with the Court identifying whether Defendant Garcia was served. If 4 Plaintiff wishes to have service attempted again on an unserved defendant, Plaintiff must file a 5 motion with the Court identifying the unserved defendant and providing more detailed information 6 regarding the unserved defendant’s name and/or address, or whether service should be attempted in 7 some other manner. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be 8 accomplished within ninety (90) court days from the date this Order and Report and 9 Recommendation is entered. 10 IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendant Garcia, or, if 11 appearance has been entered by an attorney for this Defendant, his attorney(s), a copy of every 12 pleading, motion, or other document submitted to the Court for consideration. Plaintiff shall include 13 with the original papers submitted for filing a certificate stating the date that a true and correct copy 14 of the document was mailed to Defendant Garcia or attorney(s) for Defendant Garcia. The Court 15 may disregard any document received by a District Judge or Magistrate Judge which has not been 16 filed with the Clerk of the Court, and any document received by a District Judge, Magistrate Judge, 17 or the Clerk of the Court which fails to include a certificate of service. 18 IT IS FURTHER ORDERED that Plaintiff’s Ex Parte Motion for Appointment of Counsel 19 (ECF No. 19) is DENIED without prejudice. 20 IV. RECOMMENDATION 21 IT IS HEREBY RECOMMENDED that Plaintiff’s claims against the State of Nevada, 22 claims for money damages against LVMPD Officers Stephen and Garcia in their official capacities 23 be DISMISSED with prejudice as amendment would be futile. 24 IT IS FURTHER RECOMMENDED that Plaintiff’s claims against the Las Vegas 25 Metropolitan Police Department, Fourth Amendment excessive force claim against LVMPD Officer 26 Stephen, and Fourteenth Amendment equal protection claims against LVMPD Officers Stephen and 27 Garcia in their individual capacities be DISMISSED without prejudice, with leave to amend. 1 IT IS FURTHER RECOMMENDED that Plaintiff be given one, and only one, fin 2 || opportunity to file a second amended complaint correcting the above deficiencies within thirty (3 3 |} court days from the date this Report and Recommendation is accepted and adopted, with □ 4 || following admonishment: Plaintiff is advised that if he files a second amended □□□□□□□□□□ 5 || Amended Complaint no longer serves any function in this case. As such, the second amend 6 || complaint must be complete in and of itself without reference to prior pleadings or other document 7 || The Court cannot refer to a prior pleading or other documents to make Plaintiff’s second amend 8 || complaint complete. 9 IT IS FURTHER RECOMMENDED that if Plaintiff fails to comply with th 10 || recommendation, the Court shall recommended this case be dismissed with prejudice. 11 DATED THIS 13th day of January, 2021. 12 13 14 AYN ds | 5 UNITED.STATES MAG ATE JUDGE

16 NOTICE 17 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must | 18 || in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court h 19 || held that the courts of appeal may determine that an appeal has been waived due to the failure to fi 20 || objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has al 21 || held that (1) failure to file objections within the specified time and (2) failure to properly addre 22 || and brief the objectionable issues waives the right to appeal the District Court’s order and/or appe 23 || factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th C 24 || 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 25 26 27 28