Tiffanie Harrod and Josh Whittington v. Durick Towing & Recovery, et al.

• Court: District Court, D. Nevada
• Decided: January 22, 2026
• Docket: 3:25-cv-00637
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 TIFFANIE HARROD and JOSH Case No.: 3:25-cv-00637-MMD-CSD WHITTINGTON, 4 Order Plaintiffs 5 Re: ECF No. 1, 1-1, 1-2, 1-3, 1-4 v. 6 DURICK TOWING & RECOVERY, et al., 7 Defendants 8

9 Plaintiffs have filed applications to proceed in forma pauperis (IFP) (ECF No. 1, 1-1) and 10 a pro se complaint (ECF No. 1-2).1 11 I. IFP APPLICATION 12 A person may be granted permission to proceed IFP if the person “submits an affidavit 13 that includes a statement of all assets such [person] possesses [and] that the person is unable to 14 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 15 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 16 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 17 all actions filed IFP, not just prisoner actions). 18 The Local Rules of Practice for the District of Nevada provide: “Any person who is 19 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 20 The application must be made on the form provided by the court and must include a financial 21 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 22

23 1 Two additional copies of the same complaint were also filed (ECF Nos. 1-3, 1-4). They are, as far as the court can tell, identical in every respect to the first. 1 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 2 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 3 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 4 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).

5 A review of the application to proceed IFP reveals Plaintiffs cannot pay the filing fee; 6 therefore, the applications are granted. 7 II. SCREENING 8 A. Standard 9 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 10 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 11 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 12 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 13 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 14 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii)

15 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 16 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 17 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 18 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 19 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 20 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 21 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 22 The court must accept as true the allegations, construe the pleadings in the light most 23 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 1 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 2 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 3 (1980) (internal quotation marks and citation omitted). 4 A complaint must contain more than a “formulaic recitation of the elements of a cause of

5 action,” it must contain factual allegations sufficient to “raise a right to relief above the 6 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 7 must contain something more … than … a statement of facts that merely creates a suspicion [of] 8 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 9 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 10 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 11 A dismissal should not be without leave to amend unless it is clear from the face of the 12 complaint that the action is frivolous and could not be amended to state a federal claim, or the 13 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 14 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

15 B. Plaintiffs’ Complaint 16 The complaint in this matter is brought pursuant to both the court’s diversity jurisdiction 17 and federal question jurisdiction. (See ECF No. 1-2 at 1, 1-5.) Plaintiffs assert three state law 18 claims and one claim the court presumes arises under 42 U.S.C. § 1983 against the defendants, 19 Durick Towing and Jeffrey Durik. 20 Plaintiffs, citizens of Idaho, assert that on November 14, 2024, their RV lost a wheel near 21 Mountain City, Nevada. Plaintiffs secured their vehicle off the roadway, where it was not 22 obstructing traffic. Shortly after, defendants towed the RV without authorization from Plaintiffs. 23 When Plaintiffs came to retrieve their RV, it had been severely damaged – rendered a total loss -- 1 and their belongings missing or destroyed. Plaintiffs allege that Defendants did not provide 2 proper notice or adhere to the legal requirements for towing and assert claims for (1) conversion, 3 (2) negligence, (3) unlawful seizure in violation of constitutional rights, and (4) gross 4 negligence/punitive damages. Plaintiffs seek damages in the amount of $240,000.00, in addition

5 to punitive damages. 6 1. Conversion 7 In Nevada, conversion is “‘a distinct act of dominion wrongfully exerted over another’s 8 personal property in denial of, or inconsistent with his title or rights therein or in derogation, 9 exclusion, or defiance of such title or rights.’” M.C. Multi-Fam. Dev., L.L.C. v. Crestdale 10 Assocs., Ltd., 193 P.3d 536, 542–43 (Nev. 2008). Plaintiffs have not identified in what manner 11 their RV and personal property were damaged or what personal property went missing, or how 12 Defendants caused this to be so, making it impossible to determine whether they have plausibly 13 alleged a claim for conversion. 14 In addition, the complaint lacks sufficient facts to support a reasonable inference the

15 towing itself was wrongful, particularly as Plaintiffs also allege that the towing was done “under 16 color of state towing regulations.” (See ECF No. 1-2 at 4.); see also Shoaga v. City of San Pablo, 17 No. 23-CV-05525-DMR, 2024 WL 3956326, at *6 (N.D. Cal. Aug. 26, 2024) (“The exercise of 18 dominion over the property of another is not ‘wrongful’ if it was authorized by California law.”) 19 (citing Metal Jeans, Inc. v. California, 737 Fed. App’x 826, 829 (9th Cir. 2018)). 20 Accordingly, Plaintiffs have failed to plausibly allege a claim for conversion, but they 21 will be granted leave to amend their complaint to state such a claim. 22 23 1 2. Negligence 2 Under Nevada law, “[i]t is well established that to prevail on a negligence claim, a 3 plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, 4 (3) legal causation, and (4) damages.” Clark Cnty. Sch. Dist. v. Payo, 403 P.3d 1270, 1279 (Nev.

5 2017) (quoting Sanchez v. Wal–Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009) (internal 6 quotation marks omitted). 7 Plaintiffs allege that Defendants owed them a duty to use reasonable care in towing and 8 storing the RV and its contents and that they breached this duty resulting in the damage to their 9 RV and personal belongings. These assertions are conclusory and boilerplate recitations of the 10 elements of their cause of action. For example, as just noted, Plaintiffs do not identify the ways 11 in which their RV and personal property were damaged or how those damages are the fault of the 12 Defendants. Accordingly, the court concludes Plaintiffs have failed to allege sufficient facts to 13 state a claim for negligence, but they will be granted leave to amend their complaint to state their 14 claim.

15 3. Violation of Rights/Unlawful Seizure 16 Because Plaintiffs elsewhere indicate they are asserting a claim under 42 U.S.C. § 1983,2 17 they allege Defendants were “acting under color of state towing regulations,” and they assert 18 Defendants’ actions violated their constitutional and statutory rights,3 the court construes 19 Plaintiffs’ third claim as arising under § 1983 and asserting a violation of the Fourth Amendment 20 right against unlawful seizure. 21 22

23 2 See ECF No. 1-5 (civil cover sheet). 3 The complaint identifies no statutory right allegedly violated. 1 Section 1983 provides a mechanism for the private enforcement of substantive rights 2 conferred by the Constitution and federal statutes. Section 1983 “is not itself a source of 3 substantive rights, but merely provides a method for vindicating federal rights elsewhere 4 conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation marks and citation

5 omitted). To obtain relief pursuant to section 1983, a plaintiff must establish a “(1) a violation of 6 rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by 7 conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 8 1420 (9th Cir. 1991); West v. Atkins, 487 U.S. 42, 48-49 (1988). 9 To adequately plead the section 1983 elements, a complaint must identify what 10 constitutional right each defendant violated and provide sufficient facts to plausibly support each 11 violation. See e.g., Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (noting defendants must 12 personally participate in misconduct to be liable under section 1983); see also Hines v. Yousef, 13 914 F.3d 1218, 1228 (9th Cir. 2019) (defendant must have “personally played a role in violating 14 the Constitution.”).

15 Defendants both appear to be private parties, and private parties do not generally act 16 under color of state law for purposes of § 1983. See O’Handley v. Weber, 62 F.4th 1145, 1155- 17 56 (9th Cir. 2023) (stating that only in “exceptional cases” will a private entity be treated as a 18 state actor for constitutional purposes), cert. denied, 144 S. Ct. 2715 (2024). To be considered a 19 state actor, a private party must meet either: “(1) the public function test, (2) the state compulsion 20 test, (3) the nexus test [or] (4) the joint action test.” Id. at 1157. The Ninth Circuit has held that a 21 private towing company (1) acting at the request of the police and (2) “pursuant to a statutory 22 scheme designed solely to accomplish the state’s purpose of enforcing its traffic laws,” was a 23 “willful participant in a joint activity with the State or its agents, and there [was] a sufficiently 1 close nexus between the State and the challenged action of the (towing company) so that the 2 action of the latter may be fairly treated as that of the State itself.” Stypmann v. City & Cnty. of 3 San Francisco, 557 F.2d 1338, 1341-42 (9th Cir. 1977). 4 While the complaint alleges that Defendants acted pursuant to the state’s towing laws, it

5 does not allege whether the RV was removed at the request of the police or of a private party, 6 both of which are authorized under state law. See, e.g., Nev. Rev. Stat. § 484B.443; id. § 7 487.038; id. § 487.230; id. § 487.235. Because Plaintiffs have not alleged the RV was towed at 8 the behest of the state, they have not stated a colorable claim that Defendants should be treated as 9 state actors under § 1983. See Yan Sui v. Southside Towing, No. SACV1001973JAKAJW, 2012 10 WL 13048510, at *3 (C.D. Cal. June 5, 2012), report and recommendation adopted, No. SACV 11 10-1973 JAK AJW, 2012 WL 2564778 (C.D. Cal. June 29, 2012), aff'd, 582 Fed. App’x 731 (9th 12 Cir. 2014) (holding towing company was not state actor because it acted at the behest of the 13 homeowner’s association, not a state entity). This claim will therefore be dismissed, without 14 prejudice, with leave to amend.

15 4. Punitive Damages/Gross Negligence 16 To begin, punitive damages is not a cause of action. Farris v. Canyon Creek Const., Inc., 17 367 P.3d 768 (Nev. 2010) (citing Amoroso Constr. v. Lazovich & Lazovich, 810 P.2d 775, 777 18 (Nev. 1991)). Because Plaintiffs include punitive damages in their prayer for relief, the court will 19 construe the fourth cause of action as alleging a claim for gross negligence. 20 In Nevada, gross negligence 21 is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even 22 a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated 23 character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. 1 It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable 2 violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a higher 3 degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the 4 circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional 5 wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known 6 to have a tendency to injure. 7 Bearden v. City of Boulder City, 507 P.2d 1034, 1035–36 (Nev. 1973) (quoting Hart v. Kline, 8 116 P.2d 672 (Nev. 1941)) (internal quotation marks omitted); see also Snodgrass v. Bango Oil, 9 LLC, 491 P.3d 735 (Nev. 2021). 10 The complaint does not include any factual allegations sufficient to state a plausible 11 claim that Defendants’ actions amounted to gross negligence. Instead, it merely alleges in 12 conclusory fashion that “Defendants’ conduct was malicious, oppressive, and in reckless 13 disregard of Plaintiffs’ rights.” The fourth cause of action will therefore be dismissed without 14 prejudice, with leave to amend. 15 III. CONCLUSION 16 (1)Plaintiffs’ IFP applications (ECF Nos. 1, 1-1) are GRANTED. 17 (2)The Clerk shall FILE the Complaint (ECF No. 1-2). 18 (3)The complaint is DISMISSED WITHOUT PREJUDICE, WITH LEAVE TO 19 AMEND. 20 (4)Plaintiffs have 30 DAYS from the date of this Order to file an amended complaint 21 curing the deficiencies noted above. The amended complaint must be complete in and of itself 22 without referring or incorporating by reference any previous complaint. Any allegations, parties, 23 or requests for relief from a prior complaint that are not carried forwarded in the amended 1} complaint will no longer be before the court. Plaintiffs shall clearly title the amended pleading “AMENDED COMPLAINT.” If Plaintiffs fail to file an amended complaint within the 30 3|| days, the court may recommend that this action be dismissed. 4) 1T IS SO ORDERED. 5} Dated: January 22, 2026 CS Or Craig S. Denney 7 United States Magistrte Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23