2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ROBERT LONNELL SMITH, JR., Case No. 3:23-cv-00006-ART-CSD 5 Plaintiff, ORDER ADOPTING R&R IN PART 6 v. (ECF Nos. 13, 22, 26, 28, 30) 7 BENJAMIN RHODES, et al.,
8 Defendants.
9 10 Plaintiff Robert Lonnell Smith sues the Reno Police Department and two 11 Reno police detectives, Benjamin Rhodes and Aaron Flickinger, for having falsely 12 told non-party Unzo Givens that Plaintiff had claimed that Givens was involved 13 in a murder committed by Plaintiff Smith. Magistrate Judge Denney issued a 14 Report and Recommendation (R&R) recommending that Plaintiff’s federal claims 15 in his First Amended Complaint (ECF No. 13) be dismissed with prejudice and 16 that his state-law defamation claims be dismissed without prejudice. (ECF No. 17 13.) Plaintiff objected to the R&R. (ECF No. 22.) The Court adopts the R&R in part 18 and dismisses Plaintiff’s federal claim without prejudice and with leave to amend. 19 I. FACTUAL AND PROCEDURAL BACKGROUND 20 After Plaintiff confessed to the Reno Police Department that he murdered 21 Michael Roach, Reno Police Department detectives Rhodes and Flickinger 22 (Defendants) interviewed nonparty Unzo Givens. (ECF No. 13.) According to their 23 police report, Defendants told Givens that Plaintiff had said that Givens had 24 participated in the murder. Defendants concede that the statement was false 25 (because Plaintiff had not implicated Givens) and that they used this “untrue 26 ruse” “in order to prompt a truthful response from Givens.” (Id. at 29.) Defendants 27 also falsely told Givens that Plaintiff and nonparties Tacuma M’wanza and Tanya 28 Curtis had said that they would testify against Givens in court. (Id.) Defendants 1 then told Givens to “stay away from Curtis and to not cause any problems with 2 her.” (Id.) 3 Plaintiff alleges that Defendants willfully conspired to deprive him of equal 4 protection of the law by falsely claiming to Unzo Givens that Plaintiff had 5 “snitched” on him and that Defendants revealed racial animus by telling Givens 6 to stay away from Tanya Curtis, a white woman, while not telling Defendant to 7 stay away from Plaintiff or Tacuma Mwanza, who are both black men. 8 The R&R recommended dismissing Plaintiff’s federal claims with prejudice 9 and declining supplemental jurisdiction over Plaintiff’s state law claims. 10 III. Standard of Review 11 A District Court “may accept, reject, or modify, in whole or in part, the 12 findings or recommendations made by [a] magistrate judge.” 13 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report 14 and recommendation, then the court is required to “make a de 15 novo determination of those portions of the [report and recommendation] to which 16 objection is made.” 28 U.S.C. § 636(b)(1). 17 Federal courts must conduct a preliminary screening in any case in which 18 a prisoner seeks redress from a governmental entity or officer or employee of a 19 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must 20 identify any cognizable claims and dismiss any claims that are frivolous, 21 malicious, fail to state a claim upon which relief may be granted or seek monetary 22 relief from a defendant who is immune from such relief. See 28 U.S.C. § 23 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri 24 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 25 In addition to the screening requirements under § 1915A, a federal court 26 must dismiss a prisoner’s claim, if the action “fails to state a claim on which relief 27 may be granted.” 28 U.S.C. § 1915(e)(2). The court applies the Fed. R. Civ. P. 28 12(b)(6) standard for failure to state a claim when reviewing the adequacy of a 1 complaint under § 1915. If a complaint is dismissed under § 1915(e), the court 2 will give leave to amend the complaint with directions as to curing its deficiencies 3 unless it is clear from the face of the complaint that the deficiencies cannot be 4 cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 5 1995). 6 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 7 Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000); Bell Atlantic 8 Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must “contain 9 sufficient factual matter, accepted as true, to state a claim to relief that is 10 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations 11 omitted). A claim is “plausible” if the factual content “allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 13 If the factual allegations “do not permit the court to infer more than the mere 14 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’— 15 ‘that the pleader is entitled to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)). 16 All or part of a complaint filed by a prisoner may therefore be dismissed 17 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. 18 This includes claims based on legal conclusions that are untenable (e.g., claims 19 against defendants who are immune from suit or claims of infringement of a legal 20 interest which clearly does not exist). See Neitzke v. Williams, 490 U.S. 319, 327- 21 28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). In 22 making this determination, the court takes as true the allegations of material fact 23 stated in the complaint, and the court construes them in the light most favorable 24 to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). In 25 doing so, the Court holds the allegations of a pro se complainant to less stringent 26 standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 27 U.S. 5, 9 (1980). 28 // 1 III. ANALYSIS 2 The Court must decide whether Plaintiff has alleged sufficient facts to state 3 a claim under 42 U.S.C. §§ 1985 or 1986. 4 To state a claim under 42 U.S.C. § 1985
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ROBERT LONNELL SMITH, JR., Case No. 3:23-cv-00006-ART-CSD 5 Plaintiff, ORDER ADOPTING R&R IN PART 6 v. (ECF Nos. 13, 22, 26, 28, 30) 7 BENJAMIN RHODES, et al.,
8 Defendants.
9 10 Plaintiff Robert Lonnell Smith sues the Reno Police Department and two 11 Reno police detectives, Benjamin Rhodes and Aaron Flickinger, for having falsely 12 told non-party Unzo Givens that Plaintiff had claimed that Givens was involved 13 in a murder committed by Plaintiff Smith. Magistrate Judge Denney issued a 14 Report and Recommendation (R&R) recommending that Plaintiff’s federal claims 15 in his First Amended Complaint (ECF No. 13) be dismissed with prejudice and 16 that his state-law defamation claims be dismissed without prejudice. (ECF No. 17 13.) Plaintiff objected to the R&R. (ECF No. 22.) The Court adopts the R&R in part 18 and dismisses Plaintiff’s federal claim without prejudice and with leave to amend. 19 I. FACTUAL AND PROCEDURAL BACKGROUND 20 After Plaintiff confessed to the Reno Police Department that he murdered 21 Michael Roach, Reno Police Department detectives Rhodes and Flickinger 22 (Defendants) interviewed nonparty Unzo Givens. (ECF No. 13.) According to their 23 police report, Defendants told Givens that Plaintiff had said that Givens had 24 participated in the murder. Defendants concede that the statement was false 25 (because Plaintiff had not implicated Givens) and that they used this “untrue 26 ruse” “in order to prompt a truthful response from Givens.” (Id. at 29.) Defendants 27 also falsely told Givens that Plaintiff and nonparties Tacuma M’wanza and Tanya 28 Curtis had said that they would testify against Givens in court. (Id.) Defendants 1 then told Givens to “stay away from Curtis and to not cause any problems with 2 her.” (Id.) 3 Plaintiff alleges that Defendants willfully conspired to deprive him of equal 4 protection of the law by falsely claiming to Unzo Givens that Plaintiff had 5 “snitched” on him and that Defendants revealed racial animus by telling Givens 6 to stay away from Tanya Curtis, a white woman, while not telling Defendant to 7 stay away from Plaintiff or Tacuma Mwanza, who are both black men. 8 The R&R recommended dismissing Plaintiff’s federal claims with prejudice 9 and declining supplemental jurisdiction over Plaintiff’s state law claims. 10 III. Standard of Review 11 A District Court “may accept, reject, or modify, in whole or in part, the 12 findings or recommendations made by [a] magistrate judge.” 13 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report 14 and recommendation, then the court is required to “make a de 15 novo determination of those portions of the [report and recommendation] to which 16 objection is made.” 28 U.S.C. § 636(b)(1). 17 Federal courts must conduct a preliminary screening in any case in which 18 a prisoner seeks redress from a governmental entity or officer or employee of a 19 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must 20 identify any cognizable claims and dismiss any claims that are frivolous, 21 malicious, fail to state a claim upon which relief may be granted or seek monetary 22 relief from a defendant who is immune from such relief. See 28 U.S.C. § 23 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri 24 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 25 In addition to the screening requirements under § 1915A, a federal court 26 must dismiss a prisoner’s claim, if the action “fails to state a claim on which relief 27 may be granted.” 28 U.S.C. § 1915(e)(2). The court applies the Fed. R. Civ. P. 28 12(b)(6) standard for failure to state a claim when reviewing the adequacy of a 1 complaint under § 1915. If a complaint is dismissed under § 1915(e), the court 2 will give leave to amend the complaint with directions as to curing its deficiencies 3 unless it is clear from the face of the complaint that the deficiencies cannot be 4 cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 5 1995). 6 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 7 Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000); Bell Atlantic 8 Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must “contain 9 sufficient factual matter, accepted as true, to state a claim to relief that is 10 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations 11 omitted). A claim is “plausible” if the factual content “allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 13 If the factual allegations “do not permit the court to infer more than the mere 14 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’— 15 ‘that the pleader is entitled to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)). 16 All or part of a complaint filed by a prisoner may therefore be dismissed 17 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. 18 This includes claims based on legal conclusions that are untenable (e.g., claims 19 against defendants who are immune from suit or claims of infringement of a legal 20 interest which clearly does not exist). See Neitzke v. Williams, 490 U.S. 319, 327- 21 28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). In 22 making this determination, the court takes as true the allegations of material fact 23 stated in the complaint, and the court construes them in the light most favorable 24 to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). In 25 doing so, the Court holds the allegations of a pro se complainant to less stringent 26 standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 27 U.S. 5, 9 (1980). 28 // 1 III. ANALYSIS 2 The Court must decide whether Plaintiff has alleged sufficient facts to state 3 a claim under 42 U.S.C. §§ 1985 or 1986. 4 To state a claim under 42 U.S.C. § 1985, a plaintiff must allege “(1) a 5 conspiracy; (2) for the purpose of depriving, either directly or indirectly, any 6 person or class of persons of the equal protection of the laws, or of equal privileges 7 and immunities under the laws; and (3) an act in furtherance of the conspiracy; 8 (4) whereby a person is either injured in his person or property or deprived of any 9 right or privilege of a citizen of the United States.” United Bhd. of Carpenters & 10 Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S. 825, 828–29 (1983). 11 42 U.S.C. § 1986 allows damages suits against anyone who has the power 12 to stop a § 1985 conspiracy and neglects to do so. Trerice v. Pedersen, 769 F.2d 13 1398, 1403 (9th Cir. 1985) (citing Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir. 14 1983)). The Court must therefore find a § 1985 violation before finding liability 15 under § 1986. 16 First, the Court must find whether Plaintiff has adequately alleged a civil 17 conspiracy. “A civil conspiracy is a combination of two or more persons who, by 18 some concerted action, intend to accomplish some unlawful objective for the 19 purpose of harming another which results in damage.” Gilbrook v. City of 20 Westminster, 177 F.3d 839, 856 (9th Cir. 1999), as amended on denial of reh'g 21 (July 15, 1999). Plaintiff adequately alleged that Detectives Rhodes and Flickinger 22 unlawfully combined to tell Givens a lie that could damage Plaintiff’s reputation. 23 Second, the Court must decide whether Plaintiff has adequately pled that 24 the officers’ conspiracy was “for the purpose of depriving, either directly or 25 indirectly, any person or class of persons of the equal protection of the laws, or 26 of equal privileges and immunities under the laws.” 42 U.S.C. § 1985. This 27 section “provides no substantial rights itself,” and instead allows claimants to 28 seek damages for violations of the United States Constitution, like 42 1 || U.S.C. § 1983. See Scott, 463 U.S. at 833 (citing Great American Fed. S. & L. Ass'n 2 || v. Novotny, 442 U.S. 366, 372 (1979)). Accordingly, the Court consults the § 1983 3 || standard for constitutional claims sounding in defamation, like Plaintiff’s.! 4 To state a claim sounding in defamation under 42 U.S.C. § 1983, the 5 || claimant must plead “more than mere injury to reputation.” Herb Hallman 6 || Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 645 n.3 (9th Cir. 1999). The 7 || claimant must also allege “an injury to a liberty or property interest protected by 8 || the due process clause of the Fourteenth Amendment.” Id. (citing Paul v. Davis, 9 || 424 U.S. 693, 703 (1976)). 10 Plaintiff does not allege any facts that show injury to a liberty or property 11 || interest besides damage to his reputation. Without this element, Plaintiff cannot 12 || state a 42 U.S.C. § 1985 or § 1986 claim. 13 || Accordingly, Plaintiffs complaint must be dismissed. 14 As it is not clear that amendment would be futile, the Court grants Plaintiff 15 || leave to amend. 16 Without a federal claim, the Court may, and does, decline jurisdiction over 17 || Plaintiff's remaining state law defamation claims. See 28 U.S.C. § 1367. 18 Iv. CONCLUSION 19 The Court adopts the R&R (ECF No. 18) in part and dismisses Plaintiff’s 20 || amended complaint (ECF No. 13) without prejudice and with leave to amend. 21 The Court dismisses as moot Plaintiffs motions for compliance (ECF Nos. 22 || 26, 28, 30). 23 DATED THIS 27th day of January 2025. Ans □ jlosead Jen 2s ANNE R. TRAUM 26 UNITED STATES DISTRICT JUDGE 27 || 1 Taking Plaintiff's pro se status into account, the Court construes his claim as arising under a violation of the Fourteenth Amendment, not the Thirteenth Amendment. See Hughes v. Rowe, 28 || 449 US. 5, 9 (1980).