Padilla v. State of Nevada

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4

5 RAYMOND PADILLA, Case No. 2:20-cv-00066-KJD-VCF

6 Plaintiff, ORDER vs. 7 APPLICATION TO PROCEED IN FORMA PAUPERIS STATE OF NEVADA, et al., (EFC NO. 1); AMENDED COMPLAINT (ECF NO. 8 Defendant. 11); NOTICE OF FINANCIAL STATEMENT (ECF NO. 12) 9

10 Before the Court are pro se plaintiff Raymond Padilla’s application to proceed in forma pauperis 11 (ECF No. 1), amended complaint (ECF No. 11), and his notice of financial statement (ECF No. 12). 12 Padilla’s in forma pauperis application is granted. The Court dismisses defendants the State of Nevada 13 and the North Las Vegas Police Department without prejudice. The Court also dismisses Padilla’s Fifth 14 Amendment, Eight Amendment, and Fourteenth Amendment (Equal Protection) claims without 15 prejudice. The Court will allow plaintiff’s remaining claims to proceed against the remaining 16 defendants. 17 DISCUSSION 18 19 Padilla’s filings present two questions: (1) whether Padilla may proceed in forma pauperis under 20 28 U.S.C. § 1915(e) and (2) whether Padilla’s complaint states a plausible claim for relief. 21 I. Whether Padilla May Proceed In Forma Pauperis 22 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 23 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 24 pay such fees or give security therefor.” If the plaintiff is a "prisoner" as defined by 28 U.S.C. § 1915(h), 25 as amended by the Prison Litigation Reform Act ("PLRA"), he remains obligated to pay the entire fee in installments, regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); 1 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 2 Under the PLRA, a prisoner seeking leave to proceed IFP must submit a "certified copy of the 3 4 trust fund account statement (or institutional equivalent) for the prisoner for the six-month period 5 immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 6 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 7 payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the 8 average monthly balance in the account for the past six months, whichever is greater, unless the prisoner 9 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 10 prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any 11 month in which the prisoner's account exceeds $10, and forward those payments to the Court until the 12 entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 13 Plaintiff is currently incarcerated in High Desert State Prison. (ECF No. 1 at 4). Plaintiff has 14 now filed his account statement, which states that his current account balance is $199.46. (ECF No. 12 15 at 2). The Court grants plaintiff’s application to proceed in forma pauperis. 16 17 II. Whether Padilla’s Complaint States a Plausible Claim 18 a. Legal Standard 19 Because the Court grants Padilla’s application to proceed in forma pauperis, it must review 20 plaintiff’s complaint to determine whether the complaint is frivolous, malicious, or fails to state a 21 plausible claim. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil Procedure 8(a)(2) provides that a 22 complaint must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled 23 to relief.” The Supreme Court’s decision in Ashcroft v. Iqbal states that to satisfy Rule 8’s requirements, 24 a complaint’s allegations must cross “the line from conceivable to plausible.” 556 U.S. 662, 680 (2009) 25 2 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)). Rule 12(b)(6) of the Federal Rules 1 of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can 2 be granted. A complaint should be dismissed under Rule 12(b)(6) "if it appears beyond a doubt that the 3 4 plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Buckey v. Los 5 Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 6 “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 7 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 8 Gamble, 429 U.S. 97, 106 (1976)). If the Court dismisses a complaint under § 1915(e), the plaintiff 9 should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is 10 clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato v. 11 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 b. Padilla’s Claims in the Complaint 13 Although this Court did not previously screen plaintiff’s original complaint (ECF No. 1-1), the 14 Court, “provide[ed] guidance to plaintiff on the screening that will take place should plaintiff’s 15 application be granted in the future.” (ECF No. 3 at 2). The plaintiff filed an amended complaint that the 16 17 Court will screen now. (ECF No. 11). 18 Plaintiff brings claims pursuant to 42 U.S.C. Section 1983. (Id. at 1). Padilla filed this action 19 against the State of Nevada, the North Las Vegas Police Department (“NLVPD”), Robert Knickerbocker 20 (North Las Vegas Officer), Daryl Reitz (North Las Vegas Officer), and Alex Ochoa (North Las Vegas 21 Detective). Plaintiff alleges that the Nevada Supreme Court reversed his conviction for ownership or 22 possession of a firearm by a prohibited person because it found that the district court erred in failing to 23 suppress the firearm evidence. (Id.) Plaintiff attached a copy of the Nevada Supreme Court opinion 24 25 3 reversing his conviction.1 (Id. at 11; see also Padilla v. State, 454 P.3d 705 (Nev. 2019)). Plaintiff 1 alleges that on January 28, 2020 the State of Nevada dismissed the case against him since it could not 2 proceed without the firearm and vacated the conviction. (Id.) Plaintiff brings claims against the named 3 4 defendants under color of law for violations of his civil rights related to the illegal search of his car. (Id.) 5 Plaintiff alleges that the defendants violated his Fourth Amendment right against illegal search and 6 seizure, his Fifth Amendment rights because he was deprived of his liberty without due process, his 7 Eighth Amendment rights because the defendants inflicted cruel and unusual punishment upon him, and 8 his Fourteenth Amendment rights entitling him to equal treatment and due process of law. (Id. at 5). 9 i. 42 U.S.C.S. Section 1983 10 42 U.S.C.S. Section 1983 creates a cause of action against a person who, acting under the color 11 of state law, deprives a person of their constitutional rights. Under the Eleventh Amendment a state may 12 not be sued in federal court without its consent. Alabama v. Pugh, 438 U.S. 781, 782 (1978); O'Connor 13 v. State of Nevada, 686 F.2d 749, 750 (9th Cir.). Nevada's legislature has explicitly refused to waive the 14 state's immunity under the Eleventh Amendment. NRS § 41.031(3); O'Connor, 686 F.2d at 750. A 15 private individual cannot state a claim against the state under § 1983 because the Supreme Court has 16 17 held that the state is not a 'person' within the meaning of § 1983. Will v. Michigan Dep't. of State Police, 18 491 U.S. 58, 64, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). 19 Municipalities may not be held liable on a respondeat superior theory under Section 1983. 20 Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 21 (1978). Instead, a municipal entity may be liable when its "policy or custom…inflicts the injury." Id. at 22 23

24 1 The Nevada Supreme Court found that the, “officer's intrusion into the center console of Padilla's vehicle was not a protective sweep, but an unconstitutional warrantless search and the district court erred 25 in failing to suppress the firearm evidence.” (Id.) 4 694. Municipalities and other local government units are included in that group of "persons" referred to 1 in Section 1983. Id. A complaint must allege "that the policy is the moving force behind the 2 constitutional violation." Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). A single act 3 4 by a non-policymaking official does not show the existence of a policy, custom, or practice. Rivera v. 5 Cty. of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014). "[O]nly if a plaintiff shows that his injury 6 resulted from 'permanent and well settled' practice may liability attach for injury resulting from a local 7 government custom." McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000). 8 To state a claim under 42 U.S.C.S. Section 1983, a plaintiff must plead that the named defendant 9 (1) acted "under color of state law" and (2) "deprived the plaintiff of rights secured by the Constitution 10 or federal statutes." Gibson v. U.S., 781 F.2d 1334, 1338 (9th Cir. 1986). Section 1983 "does not create 11 any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental 12 officials." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). While a § 1983 claim cannot be used to 13 vacate convictions, it can be used to “recover damages for allegedly unconstitutional conviction.” Heck 14 v. Humphrey, 512 U.S. 477, 486 (1994). The “plaintiff must prove that the conviction or sentence has 15 been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 16 17 authorized to make such determination, or called into question by a federal court's issuance of a writ of 18 habeas corpus.” Id. at 486-487. 19 To establish liability for a Section 1983 violation, plaintiff must establish that defendant's actions 20 were (1) the cause in fact and (2) the proximate cause of the constitutional deprivation. White v. Roper, 21 901 F.2d 1501, 1505-1506 (9th Cir. 1990). To hold an individual defendant personally liable for 22 damages under Section 1983, the causation inquiry must be focused on whether the individual defendant 23 was in a position to take steps to avert the incident giving rise to the deprivation but failed to do so 24 intentionally or with deliberate indifference. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 25 5 The Court lacks jurisdiction over this action against the State of Nevada because under the 1 Eleventh Amendment a state may not be sued in federal court without its consent. Pursuant to statute, 2 Nevada’s legislature has refused to waive immunity, thus the State of Nevada must be dismissed as a 3 4 defendant. The plaintiff also has not alleged any facts that the NLVPD has a policy or custom that is the 5 moving force behind the alleged constitutional violations, so the Court must dismiss the NLVPD as a 6 defendant. 7 Plaintiff has alleged that the named officers acted under color of state law and deprived him of 8 his constitutional rights. Plaintiff has alleged that the officers were the cause in fact and proximate cause 9 of the alleged constitutional violation because plaintiff alleges that the officers illegally searched his car, 10 which led to his arrest, conviction, and imprisonment. Plaintiff has also shown that the Nevada Supreme 11 Court has reversed his conviction and found that the police illegally searched his vehicle. The plaintiff 12 may bring Section 1983 claims against the named officers. 13 1. Fourth Amendment 14 The Fourth Amendment protects the "right of the people to be secure in their persons, houses, 15 papers, and effects, against unreasonable searches and seizures," and requires that a warrant sanctioning 16 17 a search or seizure be supported by probable cause. U.S. Const., Amend. 4. “A claim for unlawful arrest 18 is ‘cognizable under § 1983 as a violation of the Fourth Amendment, provided the arrest was without 19 probable cause or other justification.’” Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964-65 (9th 20 Cir.2001); see also Perez-Morciglio v. Las Vegas Metro. Police Dep't, 820 F. Supp. 2d 1111, 1120 (D. 21 Nev. 2011). Plaintiff has alleged that the defendants illegally searched his car, that there was no 22 justification for the arrest, that the Nevada Supreme Court determined that the police violated his rights 23 when they searched his car. Construing plaintiff’s complaint liberally, the plaintiff has asserted a Section 24 1983 claim that the defendants violated his Fourth Amendment rights, and he may proceed on that 25 6 claim. 1 2. Fifth Amendment 2 The due process clause of the Fifth Amendment is only applicable to the federal government. 3 4 Schweiker v. Wilson, 450 U.S. 221, 227 n.6, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981) (stating that "the 5 Fifth Amendment imposes on the Federal Government the same standard required of state legislation by 6 the Equal Protection Clause of the Fourteenth Amendment"); Bingue v. Prunchak, 512 F.3d 1169, 1174 7 (9th Cir. 2008) (noting that "defendant is a local law enforcement official, and the Fifth Amendment's 8 due process clause only applies to the federal government"); Castillo v. McFadden, 399 F.3d 993, 1002 9 n.5 (9th Cir. 2005) (stating that "[t]he Fifth Amendment prohibits the federal government from 10 depriving persons of due process, while the Fourteenth Amendment explicitly prohibits deprivations 11 without due process by the several States"); Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991) 12 (in procedural due process case, noting that the due process principles of the Fourteenth Amendment are 13 the same as those that apply to the federal government through the Fifth Amendment). Plaintiff does not 14 bring claims against the federal government. The Court dismisses plaintiff’s Fifth Amendment claim, 15 without prejudice. 16 17 3. Eighth Amendment 18 The Eighth Amendment states that, “Excessive bail shall not be required, nor excessive fines 19 imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend. 8. The Eighth Amendment's 20 prohibition against "cruel and unusual punishment" applies only after conviction and sentence. Graham 21 v. Connor, 490 U.S. 386, 393 n.6, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). “The Cruel and Unusual 22 Punishments Clause was designed to protect those convicted of crimes and consequently the Clause 23 applies only after the State has complied with the constitutional guarantees traditionally associated with 24 criminal prosecutions." Whitley v. Albers, 475 U.S. 312, 318, 106 S. Ct. 1078, 1083 (1986)(internal 25 7 citations omitted). "Subjecting a prisoner to detention beyond the termination of his sentence has been 1 held to violate the eighth amendment's proscription against cruel and usual punishment." Moore v. 2 Tartler, 986 F.2d 682, 686 (3d Cir. 1993). 3 4 Plaintiff does not challenge the conditions of his confinement or allege that the individual officer 5 defendants used excessive force against him. A very liberal reading of plaintiff’s complaint might 6 support an Eight Amendment claim because plaintiff alleges that the district court sentenced him to 28 7 months to 72 months, that the Nevada Supreme Court reversed his conviction in December 13 2019, but 8 by the time the State of Nevada dismissed his charges on January 24, 2020, he had, “already served the 9 maximum sentence[.]” (ECF No. 11 at 9). Plaintiff also does not address the fact that he is still 10 incarcerated. Even this very liberal reading would fail, however, because none of the named officer 11 defendants would be liable for any alleged extended detention. The Court finds that plaintiff’s Eighth 12 Amendment claims is not plausible. 13 4. Fourteenth Amendment (Due Process) 14 The Fourteenth Amendment's Due Process Clause provides that: "No state shall…deprive any 15 person of life, liberty, or property, without due process of law." U.S. Const., Amend. 14. “In evaluating 16 17 procedural due process claims, the court must engage in a two-step inquiry: (1) the court must ask 18 whether the state has interfered with a protected liberty or property interest; and (2) the court must 19 determine whether the procedures attendant upon that deprivation were constitutionally sufficient.” 20 Chudacoff v. Univ. Med. Ctr. of S. Nev., 609 F. Supp. 2d 1163, 1165 (D. Nev. 2009), citing to 21 Humphries v. County of Los Angeles, 554 F.3d 1170, 1184-85 (9th Cir. 2009). Plaintiff alleges that the 22 officer’s actions of illegally searching his car, which led to his conviction and imprisonment, violated 23 his due process rights. Plaintiff has alleged that the officers interfered with a protected liberty interest 24 (his freedom) and the Court must determine whether the procedures attendant upon that deprivation (his 25 8 arrest) were constitutionally sufficient. Plaintiff has plausibly alleged a Fourteen Amendment due 1 process violation. 2 5. Fourteenth Amendment (Equal Protection) 3 4 The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to 5 any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. 14, § 1. The 6 Equal Protection Clause requires the government to treat all similarly situated persons alike. City of 7 Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). If a 8 law is administered to discriminate unjustly between persons similarly situated, a denial of equal 9 protection may be the result. Guillory v. County of Orange, 731 F.2d 1379, 1383 (9th Cir. 1984). 10 Plaintiff alleges that the named officers illegally searched his car and wrongfully arrested him. Plaintiff 11 does not allege that the police treated him differently from similarly situated individuals. The Court 12 dismisses this claim without prejudice. 13 ii. Conclusion 14 Since this Court will allow some of plaintiff’s claims to proceed against some of the listed 15 defendants but dismisses other claims and defendants, the Court will stay this case for 30 days to give 16 17 plaintiff an opportunity to file an amended complaint prior to the issuance of a summons. 18 ACCORDINGLY, 19 IT IS ORDERED that plaintiff Padilla’s application to proceed in forma pauperis (ECF No. 1), 20 along with his notice of financial statement (ECF No. 12), is GRANTED. 21 IT IS FURTHER ORDERED that the Clerk of Court shall file the complaint (ECF No. 1-1). 22 IT IS FURTHER ORDERED that defendants the State of Nevada and the North Las Vegas 23 Police Department are DISMISSED WITHOUT PREJUDICE. 24 25 9 IT IS FURTHER ORDERED that Padilla’s Fifth Amendment, Eighth Amendment, and 1 Fourteenth Amendment (Equal Protection) claims are DISMISSED WITHOUT PREJUDICE. 2 IT IS FURTHER ORDERED that plaintiff has until Thursday, December 10, 2020 to file an 3 4 amended complaint addressing the issues discussed above. If plaintiff does not file an amended 5 complaint, this case will proceed on the Fourth Amendment and Fourteenth Amendment (Due Process) 6 claims against the individual officers only. Failure to timely file an amended complaint that addresses 7 the deficiencies described in this order may result in a recommendation for dismissal of those claims 8 with prejudice. 9 IT IS FURTHER ORDERED that if an amended complaint is later filed, the Clerk of the Court is 10 directed NOT to issue summons on the amended complaint. The Court will issue a screening order on 11 the amended complaint and address the issuance of summons at that time, if applicable. See 28 U.S.C. 12 §1915(e)(2). 13 IT IS FURTHER ORDERED that this action is STAYED pending further order from this Court. 14 IT IS FURTHER ORDERED that failure to timely comply with this Order will result in a 15 recommendation that this case be dismissed with prejudice. 16 17 NOTICE 18 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 19 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 20 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 21 may determine that an appeal has been waived due to the failure to file objections within the specified 22 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 23 objections within the specified time and (2) failure to properly address and brief the objectionable issues 24 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 25 10 District Court. Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch.

5 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, plaintiffs must immediately file written

3 || notification with the court of any change of address. The notification must include proof of service upon 4 || each opposing party’s attorney, or upon the opposing party if the party is unrepresented by counsel. 5 || Failure to comply with this rule may result in dismissal of the action. 6 IT IS SO ORDERED. 7 DATED this 10th day of November 2020. - <# oe

9 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11