Victory v. Andrews

• Court: District Court, D. Nevada
• Decided: February 7, 2025
• Docket: 2:24-cv-02397
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Justin Lynn Victory, Case No. 2:24-cv-02397-JAD-BNW

5 Plaintiff, SCREENING ORDER 6 v.

7 Ashlee Andrews, et al.,

8 Defendants.

9 10 Pro se plaintiff Justin Lynn Victory initiated this lawsuit by filing an application to 11 proceed in forma pauperis and a complaint. ECF Nos. 1 and 1-1. Plaintiff has submitted the 12 affidavit required by 28 U.S.C. § 1915(a) showing an inability to prepay fees or costs or give 13 security for them. Accordingly, the court will grant his request to proceed in forma pauperis. The 14 court now screens the complaint. 15 I. ANALYSIS 16 A. Screening standard 17 Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 18 redress from a governmental entity or officer or employee of a governmental entity. See 28 19 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any 20 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 21 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)– 22 (2). In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act 23 requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief 24 may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. Proc. 12(b)(6). 25 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 26 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 27 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 1 v.Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 2 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 3 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 4 2014) (quoting Iqbal, 556 U.S. at 678). 5 In considering whether the complaint is sufficient to state a claim, all allegations of 6 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 7 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 8 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 9 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 10 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 11 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 12 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 13 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 14 B. Screening the complaint 15 Plaintiff alleges that on August 2, 2023, he went to the Bank of America branch located at 16 3150 N. Rainbow Boulevard in Las Vegas, Nevada. He had a cashier’s check with him, which he 17 asserts was a refund of some sort. One of the bank employees, Ashlee Andrews, called the police 18 and told them Plaintiff was committing a crime. In turn, once METRO showed up, Plaintiff 19 asserts Officer LaRose assaulted him and sent him to jail. Plaintiff posted bail and went back to 20 the bank to claim his cashier’s check, but the bank never returned it to him. 21 Plaintiff names the following Defendants: Bank of America and Ashlee Andrews (bank 22 employee). It appears he wishes to assert claims for unreasonable search and seizure in violation 23 of the Fourth Amendment under 42 U.S.C. § 1983. 24 There are several problems with this complaint, which the court will discuss below. In 25 addition, the court will dismiss the complaint with leave to amend so that Plaintiff can determine 26 whether he can state a claim. 27 / / 1 1. Constitutional claims against private parties 2 Plaintiff asserts claims for violation of the Fourth Amendment, which the court construes 3 as a violation of 42 U.S.C. § 1983. In order to state a claim under § 1983, a plaintiff must allege 4 that a particular defendant, acting under color of state law, deprived plaintiff of a right guaranteed 5 under the United States Constitution or a federal statute. 42 U.S.C. § 1983; see West v. Atkins, 6 487 U.S. 42, 48 (1988). 7 Thus, private parties generally cannot be held liable under § 1983. See Monroe v. Pape, 8 365 U.S. 167, 172 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. 658 9 (1978). When addressing whether a private party acts under color of state law, courts “start with 10 the presumption that private conduct does not constitute governmental action.” Sutton v. 11 Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). To be sued under § 1983, a 12 private party must be a willful participant in joint action with the State or its agents. See Dennis v. 13 Sparks, 449 U.S. 24, 27-28, 32 (1980). Notably, a plaintiff must present specific facts to support 14 the claim that a private party is acting under color of state law. See Price v. State of Hawaii, 939 15 F.2d 702, 707–08 (9th Cir. 1991) (holding conclusory allegations private parties are acting under 16 color of state law, unsupported by facts, is insufficient to state a claim under § 1983). 17 Plaintiff does not make any allegations supporting the notion that Defendants (Bank of 18 America and one of its employees) were acting in concert with METRO. Thus, he has not 19 sufficiently pled that the defendants were acting “under color of state law.” Plaintiff will be given 20 leave to amend, but unless he can allege facts showing joint conduct, the constitutional claims 21 against these two defendants will fail. 22 2. Tort claims against private parties 23 While not clear, it may be the case that Plaintiff intends to assert other tort-type claims 24 against the named defendants given his cashier’s check was never returned to him. “Federal 25 district courts are courts of limited jurisdiction, possessing only that power authorized by 26 Constitution and statute.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir. 27 2011) (quotation omitted). Federal district courts “have original jurisdiction of all civil actions 1 question jurisdiction. 28 U.S.C. § 1331. Federal district courts also have original jurisdiction over 2 civil actions in diversity cases “where the matter in controversy exceeds the sum or value of 3 $75,000” and where the matter is between “citizens of different States.” 28 U.S.C. § 1332(a). 4 “Section 1332 requires complete diversity of citizenship; each of the plaintiffs must be a citizen 5 of a different state than each of the defendants.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 6 1067 (9th Cir. 2001). 7 A court may raise the question of subject-matter jurisdiction sua sponte, and it must 8 dismiss a case if it determines it lacks subject-matter jurisdiction. Special Investments, Inc. v. 9 Aero Air, Inc., 360 F.3d 989, 992 (9th Cir. 2004); Fed. R. Civ. P. 12(h)(3). Here, should Plaintiff 10 wish to assert a tort-type claim, it would have to be under a Nevada statute (unless he believes a 11 federal statute applies), which would not confer federal question jurisdiction. 12 Regarding diversity jurisdiction, Plaintiff is incarcerated in Nevada. It is not clear where 13 Defendant Ashlee Andrews resides. But if she is a resident of Nevada, complete diversity will be 14 lacking. 15 Plaintiff will be given leave to amend if he determines there is jurisdiction over a tort 16 action but will be required to provide the type of claim he seeks to assert and the residency of 17 each of the defendants. 18 3. Constitutional claims against Officer LaRose 19 It is possible that Plaintiff wishes to pursue a Fourth Amendment violation against Officer 20 LaRose, who would have been acting under color of state law. Plaintiff’s complaint suggests he 21 believes he was arrested without probable cause, which would constitute sufficient factual 22 allegations to state this claim for purposes of screening. 23 But it is not clear whether Plaintiff was convicted of the conduct for which he was 24 arrested. If a § 1983 case seeking damages alleges constitutional violations that would necessarily 25 imply the invalidity of a conviction or sentence, the prisoner must establish that the underlying 26 sentence or conviction has been invalidated on appeal, by habeas petition, or through a similar 27 proceeding. See Heck v. Humphrey, 512 U.S. 477, 483–87 (1994). Under Heck, a party who was 1 party would necessarily imply the invalidity of the conviction or sentence. See Whitaker v. 2 Garcetti, 486 F.3d 572, 581 (9th Cir. 2007) (citing Heck, 512 U.S. at 114). 3 Plaintiff does not provide any information beyond stating that he was arrested and posted 4 bail. If he intends to state a § 1983 claim against Officer LaRose, he must first state whether he 5 was convicted and, if so, whether the conviction was invalidated. 6 4. Amendment 7 As explained above, Plaintiff cannot currently state claims for which relief can be granted. 8 As a result, the court will dismiss the complaint and allow Plaintiff leave to amend. Plaintiff is 9 advised that if he files an amended complaint, the original complaint (ECF No. 1-1) will no 10 longer serve any function in this case. As such, if Plaintiff files an amended complaint, each claim 11 and the involvement of each specific defendant must be alleged sufficiently. The court cannot 12 refer to a prior pleading or to other documents to make plaintiff’s amended complaint complete. 13 The amended complaint must be complete in and of itself without reference to prior pleadings or 14 to other documents. 15 II. CONCLUSION 16 IT IS THEREFORE ORDERED that Plaintiff’s motion to proceed in forma pauperis 17 (ECF No. 1) is GRANTED. 18 IT IS FURTHER ORDERED that Plaintiff’s complaint be dismissed with leave to 19 amend. 20 IT IS FURTHER ORDERED that the Clerk of Court detach and separately file 21 Plaintiff’s complaint (ECF No. 1-1). 22 IT IS FURTHER ORDERED that Plaintiff will have until March 21, 2025, to file an 23 amended complaint. Failure to file an amended complaint by that date may result in dismissal of 24 the case. 25 IT IS FURTHER ORDERED that the Clerk of Court shall mail Plaintiff a copy of the 26 prisoner pro se form complaint. 27 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the 1 || the United States District Court, District of Nevada, 20% of the preceding month’s deposits to the 2 || account of Justin Lynn Victory, # 1278198 (in months that the account exceeds $10.00) until the 3 || full filing fee has been paid for this action. The Clerk shall send a copy of this order to the 4 || attention of Warden Ronald Oliver, P.O. Box 208, Indian Springs, NV 89070. 5 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 6 |} unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. § 1915, as amended by the 7 || Prisoner Litigation Reform Act. 8 9 DATED: February 7, 2025 10 4 pn La BRENDA WEKSLER 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28