Nephi S. Oliva v. Las Vegas Metropolitan Police Department, et al.

• Court: District Court, D. Nevada
• Decided: December 1, 2025
• Docket: 2:25-cv-00283
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Nephi S. Oliva, Case No. 2:25-cv-00283-JAD-BNW 5 Plaintiff, 6 SCREENING ORDER and REPORT v. AND RECOMMENDATION 7 Las Vegas Metropolitan Police Department, et 8 al.,

9 Defendants.

10 11 Pro se plaintiff filed an application to proceed in forma pauperis and a complaint. ECF 12 No. 1. Plaintiff submitted the affidavit required by 28 U.S.C. § 1915(a) showing an inability to 13 prepay costs or give security for them. Id. Accordingly, Plaintiff’s request to proceed in forma 14 pauperis will be granted. Plaintiff then filed an amended complaint. ECF No. 3. This Court 15 screens Plaintiff’s amended complaint as required by 28 U.S.C. § 1915(e)(2). 16 I. ANALYSIS 17 A. Screening standard 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 21 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 22 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 23 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 24 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 25 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 26 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 27 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 1 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2 2014) (quoting Iqbal, 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of 4 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 5 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 6 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 7 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 8 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 9 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 10 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 11 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 B. Screening the complaint 13 Plaintiff is resident of Clark County, Nevada, and operated a business known as 14 Constitutional Media, d/b/a Vegas CCW, in which he offered firearm defense training and 15 concealed weapons instruction. ECF No. 3 at 6. He states that Las Vegas Metropolitan Police 16 Department (LVMPD) issued him a non-expiring firearms instructor’s license in September 2020. 17 Id. at 5. According to Plaintiff, Nevada Sheriffs’ and Chiefs’ Association (NVSCA), a nonprofit 18 organization, modified the firearm training standards, and LVMPD adopted these standards 19 around April 2023. Id. Plaintiff states that neither he nor others were notified of the changes. Id. 20 Plaintiff explains that he received a letter from Sergeant Aaron Fink (of LVMPD) revoking his 21 instructor’s license without a hearing due to noncompliance with the NVSCA standards. Id. at 7. 22 However, Plaintiff contends that LVMPD reinstated his license after he appealed its decision. Id. 23 Importantly, Plaintiff alleges that shortly after his license was reinstated, LVMPD 24 delegated authority regarding licensing matters to NVSCA. Id. at 7. Plaintiff alleges that Lee 25 Orozco, an undersheriff from Churchill County Sheriff’s Office (CCSO), sent a letter from 26 NVSCA once again revoking his license and claiming full authority to do so. Id. Plaintiff 27 contends that he attempted to appeal the decision, but NVSCA denied his appeal and did not give 1 In his amended complaint, Plaintiff alleges a section 1983 procedural due process claim 2 under the Fifth and Fourteenth Amendments against the following Defendants: Las Vegas 3 Metropolitan Police Department, Nevada Sheriffs’ and Chiefs’ Association, Churchill County 4 Sheriffs’ Office, Sergeant Aaron Fink of LVMPD (in his official capacity), and Undersheriff Lee 5 Orozco of CCSO (in his personal capacity). ECF No. 3 at 8–9. Plaintiff further alleges that CCSO 6 failed to supervise and train Undersheriff Orozco. Id. at 9–10. 7 Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of [law], subjects, 8 or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, 9 privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured 10 in an action at law . . . .” Section 1983 does not create any substantive rights, but it provides a 11 method for enforcing rights contained in the Constitution or federal statutes. Crowley v. Nev. ex. 12 rel. Nev. Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012). To state a claim under 42 U.S.C. 13 § 1983, a plaintiff must allege “(1) the defendants acting under color of state law (2) deprived 14 plaintiffs of rights secured by the Constitution or federal statutes.” Williams v. California, 764 15 F.3d 1002, 1009 (9th Cir. 2014) (quotation omitted). 16 The Fourteenth Amendment’s due process clause requires that before the government 17 deprives a person of life, liberty, or property, it must give the person notice and an opportunity to 18 be heard. See Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir. 2008). “To state a 19 procedural due process claim, [a plaintiff] must allege ‘(1) a liberty or property interest protected 20 by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of 21 process.’” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman v. County of 22 Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). 23 A municipality is a “person” subject to liability under 42 U.S.C. § 1983. Monell v. Dep’t 24 of Soc. Servs. of the City of New York, 436 U.S. 658, 690 (1978)). Generally, private parties are 25 not acting under color of state law. See Price v. Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991). 26 However, 27 conduct of a private [party] constitutes state action when there is a such a close nexus treated as that of the State itself, such as when the nominally private actor is controlled by 1 an agency of the State, when it has been delegated a public function by the State, when it is entwined with governmental policies, or when government is entwined in its 2 management or control. 3 Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1150 (9th Cir. 2011) (quotations 4 omitted). Further, “[a] private individual may be liable under § 1983 if she conspired or entered 5 joint action with a state actor.” Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) 6 (quotation omitted). 7 First, this Court recommends that Plaintiff’s Fifth Amendment procedural due process 8 claim be dismissed with prejudice because the Fifth Amendment applies only to the federal 9 government, and the federal government is not a defendant here. See Santa Ana Police Officers 10 Ass’n v. City of Santa Ana, 723 F. App’x 399, 402 (9th Cir. 2018) (citing Bingue v. Prunchak, 11 512 F.3d 1169, 1174 (9th Cir. 2008)). 12 Second, this Court dismisses Plaintiff’s Fourteenth Amendment procedural due process 13 claim against Defendants CCSO, Undersheriff Orozco, and Sergeant Fink without prejudice 14 because Plaintiff does not allege that these Defendants denied him notice or an opportunity to be 15 heard. Though Undersheriff Orozco signed the letter from NVSCA and Sergeant Fink signed the 16 letter from LVMPD, Plaintiff does not allege that they denied him a hearing or the opportunity to 17 appear in person or have legal representation. The act of sending a letter is not a deprivation of 18 due process. Further, because Plaintiff does not allege that Undersheriff Orozco denied him due 19 process, it makes no difference whether CCSO failed to properly train and supervise him. So, 20 Plaintiff does not allege a Fourteenth Amendment procedural due process claim against CCSO 21 either. Given Plaintiff’s allegations, it appears NVSCA and LVMPD are the proper defendants 22 here. 23 Liberally construing Plaintiff’s amended complaint, this Court finds that he has 24 sufficiently alleged a Fourteenth Amendment procedural due process claim against LVMPD and 25 NVSCA. LVMPD is subject to liability under 42 U.S.C. § 1983. See Monell v. Dep’t of Soc. 26 Servs. of the City of New York, 436 U.S. 658, 690 (1978)). Here, Plaintiff alleges that LVMPD 27 revoked his license without a hearing. As to NVSCA, Plaintiff alleges a close nexus between it 1 screening purposes.1 See Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1150 (9th Cir. 2 2011). He alleges that LVMPD delegated its authority to NVSCA, that it adopted NVSCA’s 3 modified training standards, that it allowed NVSCA’s unofficial recommendation that Plaintiff’s 4 license be revoked to stand as an official revocation, and that Undersheriff Orozco testified that 5 NVSCA had full authority to revoke Plaintiff’s license. ECF No. 3 at 5–7. Taking these 6 allegations as true, and liberally construing the amended complaint, this Court finds that Plaintiff 7 has sufficiently alleged facts that NVSCA acted under color of state law. Accordingly, Plaintiff 8 may proceed with his Fourteenth Amendment procedural due process claim against Defendants 9 LVMPD and NVSCA. 10 C. Amendment 11 If Plaintiff chooses to amend, he must carefully read this order and address the current 12 deficiencies. Plaintiff is advised that if he files a second amended complaint, the amended 13 complaint (ECF No. 3) will no longer serve any function in this case. The Court cannot refer to a 14 prior pleading or to other documents to make his second amended complaint complete. The 15 second amended complaint must be complete in and of itself without reference to prior pleadings 16 or to other documents. 17 II. CONCLUSION 18 IT IS ORDERED that Plaintiff’s application for leave to proceed in forma pauperis (ECF 19 No. 1) is granted. 20 IT IS FURTHER ORDERED that the Clerk of Court must detach and separately file 21 Plaintiff’s amended complaint (ECF No. 3). 22 IT IS RECOMMENDED that Plaintiff’s procedural due process claim under the Fifth 23 Amendment be dismissed with prejudice. 24 25 26 27 1 This Court’s finding at the screening stage, where it must liberally construe Plaintiff’s amended complaint and take his allegations as true, does not prevent Defendants from moving to dismiss 1 IT IS FURTHER ORDERED that Plaintiff’s Fourteenth Amendment procedural due 2 process claims against Churchill County Sheriff’s Office, Undersheriff Orozco, and Sergeant Fink 3 are dismissed without prejudice and with leave to amend. If Plaintiff chooses to file a second 4 amended complaint, he must do so by December 31, 2025. If Plaintiff does not file a second 5 amended complaint, his case will proceed on the Fourteenth Amendment claim against 6 Defendants Las Vegas Metropolitan Police Department and Nevada Sheriffs’ and Chiefs’ 7 Association only. 8 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to: (1) issue 9 summonses to the following Defendants: Las Vegas Metropolitan Police Department and Nevada 10 Sheriffs’ and Chiefs’ Association; (2) deliver the summonses along with two copies of the 11 complaint (ECF No. 3) to the U.S. Marshal for service; and (3) mail Plaintiff two blank copies of 12 Form USM-285. Once Plaintiff receives the USM-285 forms, Plaintiff must fill in Defendants’ 13 last-known addresses so that they may be served. 14 / / 15 / / 16 / / 17 / / 18 / / 19 / / 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 1 IT IS FURTHER ORDERED that Plaintiff shall have until December 31, 2025, to send 2 || the U.S. Marshal the required Form USM-285. Within twenty-one days after receiving a copy of 3 || the Form USM-285 back from the U.S. Marshal showing whether service has been accomplished, 4 || Plaintiff must file a notice with the Court identifying whether the defendants were served. If 5 || Plaintiff wishes to have service again attempted on an unserved defendant, the Plaintiff must file 6 || a motion with the Court identifying the unserved defendant and specifying a more detailed name 7 || and/or address for said defendant or whether some other manner of service should be attempted. 8 9 NOTICE 10 || This report and recommendation is submitted to the United States district judge assigned to this 11 || case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation may 12 || file a written objection supported by points and authorities within fourteen days of being served 13 || with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may 14 || waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 15 |} 1991). 16 17 DATED: December 1, 2025 18 19 Ling wlntnO ban BRENDA WEKSLER 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28