Pierce v. Marconato

Opinion

JASON PIERCE, Case No.: 3:24-cv-00085-MMD-CSD

Plaintiff Report & Recommendation of United States Magistrate Judge v. Re: ECF No. 10 TONY MARCONATO, et al.,

Defendants

This Report and Recommendation is made to the Honorable Miranda M. Du, Chief United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4. Plaintiff, who is currently an inmate incarcerated within the Nevada Department of Corrections (NDOC), has filed a first amended civil rights complaint (FAC) (ECF No. 10), which the court now screens. I. SCREENING STANDARD Under the statute governing IFP proceedings, “the court shall dismiss the case at any time if the court determines that-- (A) the allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). In addition, under 28 U.S.C. § 1915A, “[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). In conducting this review, the court “shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2). Dismissal of a complaint for failure to state a claim upon which relief may be granted is

provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) track that language. As such, when reviewing the adequacy of a complaint under these statutes, the court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). The court must accept as true the allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9

(1980) (internal quotation marks and citation omitted). A complaint must contain more than a “formulaic recitation of the elements of a cause of action,” it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more … than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A dismissal should not be without leave to amend unless it is clear from the face of the complaint that the action is frivolous and could not be amended to state a federal claim, or the district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

Plaintiff’s original complaint named Reno Police Department (RPD) Detective Tony Marconato, as well as Washoe County and the RPD, and also mentioned the Sparks Police Department (SPD). Plaintiff alleged that on January 17, 2023, Detective Marconato caused him severe bodily injury by using excessive force during his arrest when he was restrained on the ground and Detective Marconato kicked him in the head four times and hit Plaintiff with his fist. He further alleged that there were a number of detectives and RPD and SPD that should have intervened to stop the assault. The court allowed Plaintiff to proceed with a Fourth Amendment excessive force claim against Marconato, and the court permitted Plaintiff to seek leave to amend to proceed against

any Doe defendants on his claim of failure to intervene in the alleged use of excessive force once he discovers the identity of those defendants. Finally, the court dismissed RPD, SPD, and Washoe County with leave to amend, noting that the City of Reno, the City of Sparks, and Washoe County might be proper defendants, but they may only be liable under certain circumstances. (ECF No. 3.) Specifically, the court advised Plaintiff that “[t]o impose liability on a municipality under Section 1983, a plaintiff must prove: “(1) [the plaintiff] had a constitutional right of which he was deprived; (2) the municipality had a policy; (3) the policy amounts to deliberate indifference to [the plaintiff’s] constitutional right; and (4) the policy is the moving force behind the constitutional violation.” Gordon v. County of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (Gordon II) (internal quotation marks and citation omitted). On June 24, 2024, Plaintiff filed his FAC, naming as defendants RPD Detectives Tony Marconato, Jaclyn Benvin, and Sean Jones, as well as the City of Reno.

Plaintiff alleges that on January 17, 2023, he was subdued by Jones and Benvin and placed on the ground, face down, in the Eldorado Casino. Plaintiff was restrained and kept on the floor while Marconato approached Plaintiff and kicked Plaintiff several times in his head and punched his head with a closed fist. He avers that Jones and Benvin knew Marconato’s behavior was unreasonable, but they failed to intervene. Plaintiff suffered pain, headaches, dizziness, and emotional distress as a result of the beating. Finally, he alleges that the City of Reno failed to properly train and supervise Marconato, Benvin, and Jones. Plaintiff mentions the Fourth and Eighth Amendments, but Plaintiff’s claims regarding the use of excessive force during an arrest and the failure to intervene arise under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989) (claims of excessive force during

an arrest or other seizure of a free citizen are evaluated under the Fourth Amendment and apply an “objective reasonableness” standard); see also Peck v. Montoya, 51 F.4th 877, 888-89 (9th Cir. 2022) (“In some situations, the Constitution may impose on an officer a duty to intervene to prevent an ongoing constitutional violation.”). Plaintiff should be allowed to proceed with his Fourth Amendment excessive force claim against Marconato as well as his Fourth Amendment failure to intervene claim against Jones and Benvin. Plaintiff fails to state a claim against the City of Reno. While Plaintiff includes a single allegation that the City of Reno failed to properly train or supervise Marconato, Jones, or Benvin, Plaintiff does not include any facts to support such a claim. “[A] local government can fail to train employees in a manner that amounts to ‘deliberate

indifference’ to a constitutional right, such that ‘the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [municipality] can reasonably be said to have been deliberately indifferent to the need.” Rodriguez v. County of Los Angeles, 891 F.3d 776 (9th Cir. 2018) (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). A plaintiff must demonstrate that the municipality was deliberately indifferent to the constitutional rights at issue. City of Canton, 489 U.S. at 392. For objective deliberate indifference on the part of a municipality, there must be “a showing that the facts available to the [municipal defendant] put it on ‘actual or constructive notice’ that its practices … were ‘substantially certain to result in the violation of the constitutional rights of [its] citizens.”

Sandoval v. County of San Diego, 985 F.3d 657 682 (9th Cir. 2021) (citing Castro, 933 F.3d at 1075). The municipal defendant must have actually caused the alleged deliberate indifference. City of Canton, 489 U.S. at 391. Plaintiff does not include any facts concerning the City of Reno’s alleged failure to train or supervise the other defendants. Nor does he include any averments that plausibly suggest an alleged failure to train or supervise was the cause of the violation of Plaintiff’s rights. As Plaintiff has already had an opportunity to amend, the claim against the City of Reno should be dismissed with prejudice. Finally, the court notes that a summons was previously issued for defendant Marconato; however, the U.S. Marshals Service (USMS) advises the court that Plaintiff never returned the USM-285 form to their office for service. The court will recommend another summons be issued for Marconato, as well as for new defendants Benvin and Jones. Plaintiff should be given another

90 days from the date of any order adopting this Report and Recommendation to complete service as to each of the defendants. Plaintiff is advised that if he fails to return the USM-285 form, and/or if service is not completed within the 90 days, this action may be dismissed without prejudice under Federal Rule of Civil Procedure 4(m). IT IS HEREBY RECOMMENDED that the District Judge enter an order: (1) Allowing Plaintiff to PROCEED with his Fourth Amendment excessive force claim against Tony Marconato and his Fourth Amendment failure to intervene claim against Jaclyn Benvin and Sean Jones. (2) The City of Reno should be DISMISSED WITH PREJUDICE.

(3) Directing the Clerk of Court to ISSUE summonses for defendants Tony Marconato, Jaclyn Benvin, and Sean Jones, and deliver the same, to the USMS for service. The Clerk shall also be directed to SEND sufficient copies of the complaint and this Order to the USMS for service on these defendants. The Clerk should be directed to SEND to Plaintiff a USM-285 form. Plaintiff should be given 21 days within which to furnish to the USMS the required USM-285 forms with relevant information for the defendant on each form at 400 S. Virginia Street, 2nd floor, Reno, Nevada 89501. Within 20 days after receiving from the USMS a copy of the USM- 285 forms showing whether service has been accomplished, if any of the defendants were not served, and if Plaintiff wants service to be attempted again, he must file a motion with the court 1} providing a more detailed name and/or address for service, or indicating that some other method of service should be attempted. 3 (4) Under Federal Rule of Civil Procedure 4(m), service on defendants Marconato, Jones and Benvin must be completed within 90 days of the date of any order adopting this Report and Recommendation. If Plaintiff requires additional time to meet any of the deadlines set by the 6] court, he must file a motion for extension of time under Local Rule 1A 6-1 before the expiration 7\| of the deadline, and the motion must be supported by a showing of good cause. A motion filed 8 after a deadline set by the court or applicable rules will be denied absent a showing of excusable neglect. Plaintiff should be aware of the following: 1. That he may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to Report and Recommendation within fourteen days of being served with a copy of the Report 13]/ and Recommendation. These objections should be titled “Objections to Magistrate Judge’s 14] Report and Recommendation” and should be accompanied by points and authorities for consideration by the district judge. 2. That this Report and Recommendation is not an appealable order and that any notice of 17] appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment by the district court. Dated: July 19, 2024 Cc SS C x Craig S. Denney United States Magistrate Judge