Turner v. Reno Police Department

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 KERRY TURNER, Case No. 3:23-cv-00221-ART-CSD 6 Plaintiff, ORDER 7 v.

8 RENO POLICE DEPARTMENT, et al.,

9 Defendants.

11 Plaintiff Kerry Turner brings this action under 42 U.S.C. § 1983 against 12 Defendants City of Reno, Detective Thomas Williams, and Detective Andrew 13 Hernandez. Plaintiff alleges that during his arrest on August 3, 2022, he was strip 14 searched nude by Defendants in public without probable cause. 15 Before the Court is Plaintiff’s second amended complaint (ECF No. 17.) This 16 complaint names Detective Williams, Detective Hernandez, and the City of Reno 17 as Defendants, and asserts three claims: violation of the Fourth Amendment, 18 violation of the Fourteenth Amendment’s Equal Protection Clause, and violation 19 of the Prison Rape Elimination Act (“PREA”). (ECF No. 17.) Magistrate Judge Craig 20 S. Denney issued a Report and Recommendation (“R&R”) recommending that 21 Plaintiff be allowed to proceed with his Fourth Amendment unreasonable search 22 claim against Williams and Hernandez, but that his equal protection and PREA 23 claims be dismissed with prejudice, and that the City of Reno be dismissed as a 24 Defendant with prejudice (ECF No. 21.) 25 For the foregoing reasons, the Court adopts Judge Denney’s R&R. The 26 Court orders that Plaintiff’s second amended complaint (ECF No. 17) be 27 considered the operative pleading, that Plaintiff be permitted to proceed with his 28 1 Fourth Amendment unreasonable search claim against Williams and Hernandez, 2 and that Plaintiff’s equal protection and PREA claims, as well as Defendant City 3 of Reno, be dismissed with prejudice. 4 I. BACKGROUND 5 Upon review, the Court agrees with and adopts the Magistrate Judge’s 6 factual and procedural history (ECF No. 21 at 1-3) in full: 7 In his original complaint, Plaintiff sued the Reno Police Department, 8 Regional Narcotics Unit, and Detective Andrew Hernandez as defendants. He 9 alleged that Hernandez stuck his hands in Plaintiff’s underwear and pulled down 10 his pants and exposed his genitalia in public without Plaintiff’s consent or 11 probable cause. (ECF No. 4.) 12 The Court screened the original complaint and allowed Plaintiff to proceed 13 with a Fourth Amendment unreasonable search claim against Hernandez. The 14 Court found, however, that Plaintiff did not state a claim against the Reno Police 15 Department or its Regional Narcotics Unit. Preliminarily, neither the police 16 department nor its narcotics unit are proper defendants. While the City of Reno 17 may be a proper defendant, a municipal entity, such as a city’s police department, 18 may only be liable for the infringement of constitutional rights under certain 19 circumstances as set forth in Monell v. Department of Social Services, 436 U.S. 20 658 (1978) and subsequent caselaw. Plaintiff did not include allegations sufficient 21 to state a claim against the City of Reno under Monell; however, he was given 22 leave to amend to attempt to do so. (ECF No. 3.) 23 Plaintiff subsequently filed two amended complaints. (ECF Nos. 9, 10.) 24 While it was unclear which of the amended complaints Plaintiff intended to be 25 the operative amended complaint, the Court nevertheless screened both of those 26 amended complaints. Both added detective Williams as a defendant, however, the 27 first proposed amended complaint included only very conclusory allegations 28 against Williams, and the second proposed amended complaint included no 1 allegations against Williams. Moreover, neither of the proposed amended 2 complaints included sufficient allegations against the City of Reno under Monell 3 as explained in the order screening the original complaint. As such, the Court 4 gave Plaintiff one final opportunity to amend by filing a second amended 5 complaint to assert claims against Hernandez, Williams, and the City of Reno. 6 (ECF No. 14.) 7 The Court subsequently determined that the action would proceed only on 8 the Fourth Amendment claim against Hernandez as set forth in the original 9 complaint and order screening the original complaint, and ordered the issuance 10 of a summons and service of Hernandez. (ECF No. 15.) The summons was issued, 11 but Hernandez was unable to be served. (ECF Nos. 16, 18.) 12 Plaintiff subsequently filed this second amended complaint (ECF No. 17), 13 which the Court will now screen. 14 II. LEGAL STANDARD 15 A. Screening Standard 16 Per Judge Denney’s R&R, the standard for screening complaints in which 17 a prisoner seeks redress against the government or an officer or employer of a 18 government entity is as follows: 19 Under the statute governing IFP proceedings, “the court shall dismiss the 20 case at any time if the court determines that-- (A) the allegation of poverty is 21 untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails to state 22 a claim upon which relief may be granted; or (iii) seeks monetary relief against a 23 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 24 In addition, under 28 U.S.C. § 1915A, “[t]he court shall review, before docketing, 25 if feasible or, in any event, as soon as practicable after docketing, a complaint in 26 a civil action in which a prisoner seeks redress from a governmental entity or 27 officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). In conducting 28 this review, the court “shall identify cognizable claims or dismiss the complaint, 1 or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or 2 fails to state a claim upon which relief may be granted; or (2) seeks monetary 3 relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)- 4 (2). 5 Dismissal of a complaint for failure to state a claim upon which relief may 6 be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 7 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) track that language. As 8 such, when reviewing the adequacy of a complaint under these statutes, the court 9 applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. 10 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Review under Rule 12(b)(6) is 11 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 12 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 13 The court must accept as true the allegations, construe the pleadings in 14 the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s 15 favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 16 Allegations in pro se complaints are “held to less stringent standards than formal 17 pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal 18 quotation marks and citation omitted). 19 A complaint must contain more than a “formulaic recitation of the elements 20 of a cause of action,” it must contain factual allegations sufficient to “raise a right 21 to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 22 555 (2007). “The pleading must contain something more … than … a statement 23 of facts that merely creates a suspicion [of] a legally cognizable right of action.” 24 Id. (citation and quotation marks omitted). At a minimum, a plaintiff should 25 include “enough facts to state a claim to relief that is plausible on its face.” Id. at 26 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 27 A dismissal should not be without leave to amend unless it is clear from 28 the face of the complaint that the action is frivolous and could not be amended 1 to state a federal claim, or the district court lacks subject matter jurisdiction over 2 the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); 3 O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 4 B. Review of Reports and Recommendations 5 Under the Federal Magistrates Act, a court “may accept, reject, or modify, 6 in whole or in part, the findings or recommendations made by [a] magistrate 7 judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's 8 report and recommendation, then the court is required to “make a de 9 novo determination of those portions of the [report and recommendation] to which 10 objection is made.” 28 U.S.C. § 636(b)(1). A court is not required to conduct “any 11 review at all . . . of any issue that is not the subject of an objection.” Thomas v. 12 Arn, 474 U.S. 140, 149 (1985). 13 III. ANALYSIS 14 Plaintiff filed an objection to Judge Denney’s R&R screening his complaint 15 (ECF No. 23.) As such, the Court reviews the issues in the R&R de novo. 16 A. Fourth Amendment Claim 17 The Court agrees with Judge Denney that for the purposes of screening, 18 Plaintiff has sufficiently alleged that he was subject to an unreasonable search 19 by Defendants Hernandez and Williams, in violation of his Fourth Amendment 20 rights. Accordingly, this claim against Defendants Hernandez and Williams may 21 proceed. 22 B. Equal Protection Claim 23 The Court agrees with Judge Denney’s determination that Plaintiff’s second 24 amended complaint does not include allegations that could give rise to an equal 25 protection violation. An equal protection claim requires an allegation that one 26 was treated differently from others who are similarly situated based on 27 membership in a protected class. Lee v. City of Los Angeles, 250 F.3d 668, 686- 28 687 (9th Cir. 2001); Thornton v. City of St. Helens, 425 F.3d 1158 (9th Cir. 2005). 1 Here, Plaintiff has not alleged that he was treated differently from others who are 2 similarly situated based on a protected class. The Court agrees that given the fact 3 that Plaintiff has amended his complaint multiple times and has failed to include 4 facts to support an equal protection violation, it is appropriate to dismiss this 5 claim with prejudice. 6 C. PREA Claim 7 The Court agrees with Judge Denney’s determination that Plaintiff may not 8 bring a claim under PREA. There is no private right of action for an alleged 9 violation of PREA, meaning that a Plaintiff may not bring a private lawsuit for 10 violation of PREA. See Hatcher v. Harrington, No. 14-00554 JMS/KSC, 2015 WL 11 474313, at *4 (D. Haw. Feb. 5, 2015) (noting that district courts nationwide have 12 found that PREA does not create a private cause of action). Accordingly, the Court 13 dismisses this claim with prejudice. 14 D. City of Reno as a Defendant 15 The Court agrees with Judge Denney’s determination that Plaintiff does not 16 state a claim against the City of Reno. Under Monell, municipalities can only be 17 liable for the infringement of constitutional rights under certain circumstances. 18 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-95 (1978). “[M]unicipalities may 19 be liable under § 1983 for constitutional injuries pursuant to (1) an official policy; 20 (2) a pervasive practice or custom; (3) a failure to train, supervise or discipline; 21 or (4) a decision or act by a final policymaker.” Horton by Horton v. City of Santa 22 Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). A municipality may not, however, 23 be sued under a respondeat superior theory because it employed an alleged 24 wrongdoer. Id. at 603. 25 Plaintiff’s second amended complaint does not allege an official policy, 26 pervasive practice or custom, or decision or act by a final policymaker. Plaintiff 27 does allege that as the employer of Defendants Hernandez and Williams, the City 28 is responsible for their training. (ECF No. 17 at 5.) However, Plaintiff does not 1 plead sufficient factual allegations to state a failure to train claim against the City 2 of Reno under Monell. 3 Given that Plaintiff has been given several opportunities to amend his 4 complaint to state a Monell claim against the City of Reno, the Court agrees with 5 Judge Denney’s recommendation that this claim be dismissed with prejudice. 6 IV. Plaintiff’s Motion for Extension of Time 7 Plaintiff filed a motion for extension of time to object to Judge Denney’s 8 R&R (ECF No. 22.) Good cause appearing, the Court will grant Plaintiff’s motion. 9 V. CONCLUSION 10 It is therefore ordered that Plaintiff’s second amended complaint (ECF No. 11 17) be the operative pleading in this case. 12 It is further ordered that Plaintiff’s motion for extension of time (ECF No. 13 22) is GRANTED. 14 It is further ordered that Plaintiff’s objection to Judge Denney’s R&R (ECF 15 No. 23) is OVERRULED. 16 It is further ordered that Judge Denney’s R&R (ECF No. 21) is ADOPTED. 17 It is further ordered that Plaintiff’s PREA and equal protection claims are 18 DISMISSED with prejudice. 19 It is further ordered that the City of Reno be DISMISSED as a Defendant 20 in this action with prejudice. 21 It is further ordered that Plaintiff may PROCEED with his Fourth 22 Amendment unreasonable search claim against Defendants William and 23 Hernandez in the second amended complaint. 24 Additionally, the Clerk shall ISSUE another summons for Defendant 25 Andrew Hernandez and a summons for Defendant Detective Williams, and 26 deliver the same, to the U.S. Marshal for service. The Clerk shall also SEND 27 sufficient copies of the Second Amended Complaint (ECF No. 17) and this Order 28 to the U.S. Marshal for service on the Defendants. The Clerk shall SEND to 1 Plaintiff two USM-285 forms. Plaintiff has 21 days from the date of this order 2 (until October 11, 2024) to send the U.S. Marshal the required USM-285 forms 3 with the relevant information provided for each Defendant on the form (send to 4 the U.S. Marshal at 400 S. Virginia St., 2nd Floor, Reno, NV 89501). Plaintiff 5 should note that the U.S. Marshal was previously unable to serve Defendant 6 Hernandez at the address provided in the last USM-285 form, so he may wish to 7 provide an alternative address for service of Hernandez. Within 20 days after 8 receiving from the U.S. Marshal a copy of the USM-285 forms showing whether 9 service has been accomplished, if a Defendant was not served, and if Plaintiff 10 wants service to be attempted again, he must file a motion with the court 11 providing a more detailed name and/or address for service, or indicating that 12 some other method of service should be attempted. 13 Plaintiff should be reminded that under Federal Rule of Civil Procedure 14 4(m), service must be completed within 90 days of the order directing service. If 15 Plaintiff requires additional time to meet any of the deadlines set by the court, he 16 must file a motion for extension of time under Local Rule IA 6-1 before the 17 expiration of the deadline, and the motion must be supported by a showing of 18 good cause. A motion filed after a deadline set by the court or applicable rules 19 will be denied absent a showing of excusable neglect. 20 Plaintiff shall serve upon Defendant(s) or, if an appearance has been 21 entered by counsel, upon the attorney(s), a copy of every pleading, motion or other 22 document submitted for consideration by the court. If Plaintiff electronically files 23 a document with the court’s electronic filing system, no certificate of service is 24 required. Fed. R. Civ. P. 5(d)(1)(B); LR IC 4-1(b); LR 5-1. If Plaintiff mails the 25 document to the court, Plaintiff shall include with the original document 26 submitted for filing a certificate stating the date that a true and correct copy of 27 the document was mailed to the Defendants or counsel for the Defendants. If 28 counsel has entered a notice of appearance, Plaintiff shall direct service to the 1 || individual attorney named in the notice of appearance, at the physical or 2 || electronic address stated therein. The court may disregard any document 3 || received by a district judge or magistrate judge which has not been filed with the 4 || Clerk, and any document received by a district judge, magistrate judge, or the 5 || Clerk which fails to include a certificate showing proper service when required. 6 7 Dated this 20th day of September, 2024. 8 ° Ana jlosed Jer 10 ANNE R. TRAUM 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28