1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 RAMEN ABRAHAM, Case No. 2:26-cv-00696-ART-EJY
5 Plaintiff, ORDER 6 v.
7 CITY OF LAS VEGAS CODE ENFORCEMENT, 8 Defendant. 9 10 Pending before the Court is Plaintiff’s Application to Proceed in forma pauperis (“IFP”) and 11 Complaint alleging a violation of the Fourteenth Amendment to the U.S. Constitution. ECF Nos. 1, 12 1-1. The Court grants Plaintiff’s IFP application below. For the reasons stated herein, Plaintiff’s 13 Complaint is dismissed without prejudice and with leave to amend. 14 I. Screening Standard 15 The Court screens the Complaint under 28 U.S.C. § 1915(e)(2). In screening the Complaint, 16 the Court must identify cognizable claims and dismiss claims that are frivolous, malicious, fail to 17 state a claim on which relief may be granted or seek monetary relief from a defendant who is immune 18 from such relief. 28 U.S.C. § 1915(e)(2). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 19 To survive § 1915 review, Plaintiff’s Complaint must “contain sufficient factual matter, 20 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009). Courts liberally construes pro se complaints and may only dismiss them “if 22 it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 23 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 24 556 U.S. at 678). 25 In considering whether Plaintiff’s Complaint is sufficient to state a claim, all allegations of 26 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit 27 P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although 1 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 3 insufficient. Id. Rule 8 of the Federal Rules of Civil Procedure requires a complaint to plead 4 sufficient facts to give a defendant fair notice of the claims against him and the grounds upon which 5 it rests. Yamaguchi v. United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) 6 (citations omitted). Unless it is clear the complaint’s deficiencies cannot be cured through 7 amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding 8 the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 9 II. Discussion 10 Plaintiff alleges that on March 6, 2026, he purchased property located on McDermit Street 11 in Las Vegas, Nevada. Unbeknownst to him, there were existing code violations assessed against 12 the property that subjected the home to potential demolition. Plaintiff says that upon learning of the 13 violations he took immediate remedial action, “pulled permits,” and is working to render the property 14 compliant with all building and safety codes. Plaintiff says demolition of the property will cause 15 him significant damages and he seeks an opportunity to bring the property into compliance. Plaintiff 16 contends the failure to provide him with the opportunity to bring his property into compliance is a 17 violation of the Fourteenth Amendment. 18 To establish a substantive due process violation under the Fourteenth Amendment under 42 19 U.S.C. § 1983 Plaintiff must demonstrate (1) a deprivation of life, liberty, or property, and (2) 20 “conscience shocking behavior by the government.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 21 2006). Procedural due process ensures notice and an opportunity to be heard. Mathews v. Eldridge, 22 424 U.S. 319, 333 (1976); Conner v. City of Santa Ana, 897 F.2d 1487, 1492 (9th Cir. 1990). “[I]f 23 feasible, notice must be reasonably calculated to inform parties of proceedings which may directly 24 and adversely affect their legally protected interests.” Walker v. City of Hutchinson, Kan., 352 U.S. 25 112, 115 (1956). The Supreme Court “called attention to the impossibility of setting up a rigid 26 formula as to the kind of notice that must be given; notice required will vary with circumstances and 27 conditions.” Id. 1 Here, Plaintiff’s alleged purchase and, therefore, ownership of the McDermit Street property 2 establishing his protected property interest within the meaning of the Fourteenth Amendment. Thus, 3 the only question for the Court is whether Plaintiff was provided with the process he is due before 4 demolition of the McDermit property occurs. DeRaffele v. City of Williamsport, Civil No. 4:15-cv- 5 02186, 2016 WL 11200711, at *6 (M.D. Pa. Oct. 3, 2016) (finding the plaintiff’s contention that 6 there was condemnation of his property without prior notice and a hearing, and that post-deprivations 7 procedures were inadequate to protect his property interest, stated a procedural due process claim). 8 In “situations where the [s]tate feasibly can provide a predeprivation hearing before taking property, 9 it generally must do so regardless of the adequacy of a post-deprivation … remedy to compensate 10 for the taking.” Shinault v. Hawks, 782 F.3d 1053, 1058 (9th Cir. 2015) (quoting Zinermon v. Burch, 11 494 U.S. 113, 127 (1990)). 12 The facts as pleaded are inadequate to allow the Court to assess whether Plaintiff (not his 13 predecessor) received any notice before demolition of the McDermit Street property was ordered or, 14 for that matter, before demolition occurred. In the absence of facts, the Court cannot assess whether 15 a procedural due process violation occurred. Moreover, the absence of facts sufficient to assess 16 whether a procedural due process violation occurred renders it impossible to assess whether 17 demotion, if it occurred in the absence of any notice, might shock the conscience. 18 For the sake of completeness, the Court notes that it considered state law regarding potential 19 discretionary act immunity. See Ransdell v. Clark Cnty., 192 P.3d 756, 761-64 (Nev. 2008), in which 20 the Nevada Supreme Court held that NRS § 41.032(2) shielded Clark County from a suit based on 21 abating the plaintiff’s property following a notice of code violations regarding garbage and unused 22 vehicles.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 RAMEN ABRAHAM, Case No. 2:26-cv-00696-ART-EJY
5 Plaintiff, ORDER 6 v.
7 CITY OF LAS VEGAS CODE ENFORCEMENT, 8 Defendant. 9 10 Pending before the Court is Plaintiff’s Application to Proceed in forma pauperis (“IFP”) and 11 Complaint alleging a violation of the Fourteenth Amendment to the U.S. Constitution. ECF Nos. 1, 12 1-1. The Court grants Plaintiff’s IFP application below. For the reasons stated herein, Plaintiff’s 13 Complaint is dismissed without prejudice and with leave to amend. 14 I. Screening Standard 15 The Court screens the Complaint under 28 U.S.C. § 1915(e)(2). In screening the Complaint, 16 the Court must identify cognizable claims and dismiss claims that are frivolous, malicious, fail to 17 state a claim on which relief may be granted or seek monetary relief from a defendant who is immune 18 from such relief. 28 U.S.C. § 1915(e)(2). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 19 To survive § 1915 review, Plaintiff’s Complaint must “contain sufficient factual matter, 20 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009). Courts liberally construes pro se complaints and may only dismiss them “if 22 it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 23 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 24 556 U.S. at 678). 25 In considering whether Plaintiff’s Complaint is sufficient to state a claim, all allegations of 26 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit 27 P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although 1 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 3 insufficient. Id. Rule 8 of the Federal Rules of Civil Procedure requires a complaint to plead 4 sufficient facts to give a defendant fair notice of the claims against him and the grounds upon which 5 it rests. Yamaguchi v. United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) 6 (citations omitted). Unless it is clear the complaint’s deficiencies cannot be cured through 7 amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding 8 the complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 9 II. Discussion 10 Plaintiff alleges that on March 6, 2026, he purchased property located on McDermit Street 11 in Las Vegas, Nevada. Unbeknownst to him, there were existing code violations assessed against 12 the property that subjected the home to potential demolition. Plaintiff says that upon learning of the 13 violations he took immediate remedial action, “pulled permits,” and is working to render the property 14 compliant with all building and safety codes. Plaintiff says demolition of the property will cause 15 him significant damages and he seeks an opportunity to bring the property into compliance. Plaintiff 16 contends the failure to provide him with the opportunity to bring his property into compliance is a 17 violation of the Fourteenth Amendment. 18 To establish a substantive due process violation under the Fourteenth Amendment under 42 19 U.S.C. § 1983 Plaintiff must demonstrate (1) a deprivation of life, liberty, or property, and (2) 20 “conscience shocking behavior by the government.” Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 21 2006). Procedural due process ensures notice and an opportunity to be heard. Mathews v. Eldridge, 22 424 U.S. 319, 333 (1976); Conner v. City of Santa Ana, 897 F.2d 1487, 1492 (9th Cir. 1990). “[I]f 23 feasible, notice must be reasonably calculated to inform parties of proceedings which may directly 24 and adversely affect their legally protected interests.” Walker v. City of Hutchinson, Kan., 352 U.S. 25 112, 115 (1956). The Supreme Court “called attention to the impossibility of setting up a rigid 26 formula as to the kind of notice that must be given; notice required will vary with circumstances and 27 conditions.” Id. 1 Here, Plaintiff’s alleged purchase and, therefore, ownership of the McDermit Street property 2 establishing his protected property interest within the meaning of the Fourteenth Amendment. Thus, 3 the only question for the Court is whether Plaintiff was provided with the process he is due before 4 demolition of the McDermit property occurs. DeRaffele v. City of Williamsport, Civil No. 4:15-cv- 5 02186, 2016 WL 11200711, at *6 (M.D. Pa. Oct. 3, 2016) (finding the plaintiff’s contention that 6 there was condemnation of his property without prior notice and a hearing, and that post-deprivations 7 procedures were inadequate to protect his property interest, stated a procedural due process claim). 8 In “situations where the [s]tate feasibly can provide a predeprivation hearing before taking property, 9 it generally must do so regardless of the adequacy of a post-deprivation … remedy to compensate 10 for the taking.” Shinault v. Hawks, 782 F.3d 1053, 1058 (9th Cir. 2015) (quoting Zinermon v. Burch, 11 494 U.S. 113, 127 (1990)). 12 The facts as pleaded are inadequate to allow the Court to assess whether Plaintiff (not his 13 predecessor) received any notice before demolition of the McDermit Street property was ordered or, 14 for that matter, before demolition occurred. In the absence of facts, the Court cannot assess whether 15 a procedural due process violation occurred. Moreover, the absence of facts sufficient to assess 16 whether a procedural due process violation occurred renders it impossible to assess whether 17 demotion, if it occurred in the absence of any notice, might shock the conscience. 18 For the sake of completeness, the Court notes that it considered state law regarding potential 19 discretionary act immunity. See Ransdell v. Clark Cnty., 192 P.3d 756, 761-64 (Nev. 2008), in which 20 the Nevada Supreme Court held that NRS § 41.032(2) shielded Clark County from a suit based on 21 abating the plaintiff’s property following a notice of code violations regarding garbage and unused 22 vehicles. However, applicable here, the Ninth Circuit makes clear that discretionary act immunity 23 does not protect unconstitutional government conduct. Nurse v. United States, 226 F.3d 996, 1002 24 (9th Cir. 2000). Thus, while the Nevada Supreme Court found that the Clark County abatement 25 procedure “required the inspectors to use their own judgment and conduct individual assessments of 26 the conditions on [the plaintiff's] property to determine if abatement was required under the Clark 27 County Code,” and “strong public policy considerations related to public health, safety, and welfare 1 County Code Enforcement has acted unconstitutionally, discretionary act immunity will not apply 2 to protect this defendant from suit. 3 III. Order 4 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in forma 5 pauperis (ECF No. 1) is GRANTED. 6 Based on the foregoing, IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 7 1-1) must be filed on the docket. 8 IT IS FURTHER ORDERED that Plaintiff’s Complaint is dismissed without prejudice and 9 with leave to amend. 10 IT IS FURTHER ORDERED that if Plaintiff elects to file an amended complaint, he must 11 do so no later than April 7, 2026. The proposed amended complaint must be complete in and of 12 itself, must not refer in any manner to any prior complaint, and must include all claims, and the 13 factual basis in support of all claims, he wishes to assert. The facts must discuss what notice, if any, 14 Plaintiff received regarding demolition of his property and what steps he took in response to such 15 notice. 16 IT IS FURTHER ORDERED that failure to timely file an amended complaint will result in 17 a recommendation to dismiss this matter in its entirety. 18 Dated this 17th day of March, 2026. 19
20 ELAYNA J. YOUCHAH 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27