1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Justin L. Victory, Case No. 2:24-cv-02397-JAD-BNW 5 Plaintiff 6 ORDER ADOPTING REPORT AND v. RECOMMENDATION 7 Ashlee Andrews, et al., 8 ECF No. 8 Defendant 9 10 On 6/26/25, the magistrate judge entered this report and recommendation [ECF No. 8]: 11 Before the Court is Plaintiff Justin L. Victory’s amended complaint in which he alleges 12 violations of his Fourth Amendment rights under a Bivens action. ECF No. 5. As required by 28 13 U.S.C § 1915(e)(2), the Court has screened Plaintiff’s amended complaint and recommends that it 14 be dismissed with prejudice as the claim involves private parties. 15 I. Procedural history 16 Plaintiff initiated this matter with an application to proceed IFP and an accompanying 17 complaint on December 23, 2024. ECF No. 1. Based upon the affidavit submitted by Plaintiff, 18 which demonstrated Plaintiff’s inability to prepay fees or costs or give security for them, this 19 Court granted his request to proceed in forma pauperis. ECF No. 3 at 1. 20 On February 7, 2025, the Court screened Plaintiff’s original complaint in which he alleged 21 a 42 U.S.C. § 1983 Fourth Amendment claim. The Court dismissed his original complaint 22 without prejudice based on his failure to state a claim and allowed Plaintiff an opportunity to file 23 an amended complaint. Id. Plaintiff filed his amended complaint, which the Court will now 24 screen. ECF No. 5. 25 II. Plaintiff’s allegations and claims for relief 26 Plaintiff alleges that he arrived at the N. Rainbow Blvd. Bank of America location on 27 August 2nd, 2023. Plaintiff alleges he arrived at the location with a cashier’s check, intending to 1 alongside three different forms of identification, Plaintiff contends that bank manager Ashlee 2 Andrews called the police and told them that Plaintiff was committing a crime. Consequently, 3 Metro showed up. Plaintiff asserts Officer LaRose assaulted him and took him to jail. Plaintiff 4 alleges he has yet to receive the funds or cashier’s check from Bank of America. Id. 5 Plaintiff names the following Defendants: Bank of America and Ashlee Andrews (bank 6 employee). Plaintiff seeks to assert claims for unreasonable search and seizure in violation of the 7 Fourth Amendment under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 8 III. Screening standard 9 Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 10 redress from a governmental entity or officer or employee of a governmental entity. See 28 11 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any 12 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 13 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)- 14 (2). In addition to the screening requirements under § 1915(A), the Prison Litigation Reform Act 15 requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief 16 may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. Proc. 12(b)(6), 17 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 18 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012). To survive a § 1915 review, a complaint must “contain sufficient 20 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 21 v.Iqbal, 556 U.S. 662, 678 (2009). The Court liberally construes pro se complaints and may only 22 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 23 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 24 2014) (quoting Iqbal, 556 U.S. at 678) 25 In considering whether the 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 27 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 1 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 2 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 3 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 4 Plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 5 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 6 IV. Analysis 7 A. Bivens Claims 8 Plaintiff has alleged a violation of his Fourth Amendment rights—the right of the people 9 to be secure in their persons, houses, papers, and effects, against unreasonable searches and 10 seizures—under a Bivens action. U.S. Const. amend. IV; ECF No. 5. “To state a claim for relief 11 under Bivens, a plaintiff must allege that a federal officer deprived him of his constitutional 12 rights.” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (emphasis added). Although the 13 Supreme Court has not “dispense[d] with Bivens altogether,” it has “emphasized that recognizing 14 a cause of action under Bivens is ‘a disfavored judicial activity.’ Barone v. Ford, 2024 WL 15 4119266, at *4 (D. Nev. 2024) (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). In Ziglar, 16 the Supreme Court set forth a two-part test to determine whether a Bivens claim may proceed: a 17 court first must consider whether the claim at issue extends Bivens in a new context from 18 previously established Bivens cases, and, if so, a court must then apply a “special factors 19 analysis” to determine whether there are” special factors counselling hesitation” in expanding 20 Bivens. Ziglar, 582 U.S. at 136. 21 A Bivens action may constitute a new context depending on, for example: 22 the rank of the officers involved; the constitutional right at issue; the generality or 23 specificity of the official action; the extent of judicial guidance as to how an officer 24 should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion 25 by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. 26 27 Id. at 140. If facts present constitute a new context, the Ninth Circuit asks “whether there is ‘any 1 689 F.3d 975, 982 (9th Cir. 2012) (quoting W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 2 1120 (9th Cir. 2009)).
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Justin L. Victory, Case No. 2:24-cv-02397-JAD-BNW 5 Plaintiff 6 ORDER ADOPTING REPORT AND v. RECOMMENDATION 7 Ashlee Andrews, et al., 8 ECF No. 8 Defendant 9 10 On 6/26/25, the magistrate judge entered this report and recommendation [ECF No. 8]: 11 Before the Court is Plaintiff Justin L. Victory’s amended complaint in which he alleges 12 violations of his Fourth Amendment rights under a Bivens action. ECF No. 5. As required by 28 13 U.S.C § 1915(e)(2), the Court has screened Plaintiff’s amended complaint and recommends that it 14 be dismissed with prejudice as the claim involves private parties. 15 I. Procedural history 16 Plaintiff initiated this matter with an application to proceed IFP and an accompanying 17 complaint on December 23, 2024. ECF No. 1. Based upon the affidavit submitted by Plaintiff, 18 which demonstrated Plaintiff’s inability to prepay fees or costs or give security for them, this 19 Court granted his request to proceed in forma pauperis. ECF No. 3 at 1. 20 On February 7, 2025, the Court screened Plaintiff’s original complaint in which he alleged 21 a 42 U.S.C. § 1983 Fourth Amendment claim. The Court dismissed his original complaint 22 without prejudice based on his failure to state a claim and allowed Plaintiff an opportunity to file 23 an amended complaint. Id. Plaintiff filed his amended complaint, which the Court will now 24 screen. ECF No. 5. 25 II. Plaintiff’s allegations and claims for relief 26 Plaintiff alleges that he arrived at the N. Rainbow Blvd. Bank of America location on 27 August 2nd, 2023. Plaintiff alleges he arrived at the location with a cashier’s check, intending to 1 alongside three different forms of identification, Plaintiff contends that bank manager Ashlee 2 Andrews called the police and told them that Plaintiff was committing a crime. Consequently, 3 Metro showed up. Plaintiff asserts Officer LaRose assaulted him and took him to jail. Plaintiff 4 alleges he has yet to receive the funds or cashier’s check from Bank of America. Id. 5 Plaintiff names the following Defendants: Bank of America and Ashlee Andrews (bank 6 employee). Plaintiff seeks to assert claims for unreasonable search and seizure in violation of the 7 Fourth Amendment under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 8 III. Screening standard 9 Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 10 redress from a governmental entity or officer or employee of a governmental entity. See 28 11 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any 12 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 13 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)- 14 (2). In addition to the screening requirements under § 1915(A), the Prison Litigation Reform Act 15 requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief 16 may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. Proc. 12(b)(6), 17 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 18 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012). To survive a § 1915 review, a complaint must “contain sufficient 20 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 21 v.Iqbal, 556 U.S. 662, 678 (2009). The Court liberally construes pro se complaints and may only 22 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 23 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 24 2014) (quoting Iqbal, 556 U.S. at 678) 25 In considering whether the 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 27 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 1 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 2 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 3 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 4 Plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 5 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 6 IV. Analysis 7 A. Bivens Claims 8 Plaintiff has alleged a violation of his Fourth Amendment rights—the right of the people 9 to be secure in their persons, houses, papers, and effects, against unreasonable searches and 10 seizures—under a Bivens action. U.S. Const. amend. IV; ECF No. 5. “To state a claim for relief 11 under Bivens, a plaintiff must allege that a federal officer deprived him of his constitutional 12 rights.” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (emphasis added). Although the 13 Supreme Court has not “dispense[d] with Bivens altogether,” it has “emphasized that recognizing 14 a cause of action under Bivens is ‘a disfavored judicial activity.’ Barone v. Ford, 2024 WL 15 4119266, at *4 (D. Nev. 2024) (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). In Ziglar, 16 the Supreme Court set forth a two-part test to determine whether a Bivens claim may proceed: a 17 court first must consider whether the claim at issue extends Bivens in a new context from 18 previously established Bivens cases, and, if so, a court must then apply a “special factors 19 analysis” to determine whether there are” special factors counselling hesitation” in expanding 20 Bivens. Ziglar, 582 U.S. at 136. 21 A Bivens action may constitute a new context depending on, for example: 22 the rank of the officers involved; the constitutional right at issue; the generality or 23 specificity of the official action; the extent of judicial guidance as to how an officer 24 should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion 25 by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider. 26 27 Id. at 140. If facts present constitute a new context, the Ninth Circuit asks “whether there is ‘any 1 689 F.3d 975, 982 (9th Cir. 2012) (quoting W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 2 1120 (9th Cir. 2009)). “If there is such an alternative remedy, [the] inquiry stops.” Mirmehdi, 689 3 F.3d at 982. However, these two steps “often resolve to a single question: whether there is any 4 reason to think that Congress might be better equipped to create a damages remedy.” Egbert v. 5 Boule, 596 U.S. 482, 483 ( 2022). 6 As to the three cases that the Supreme Court has allowed to proceed under Bivens, it has 7 summarized those three cases as follows: 8 In Bivens v. Six Unknown Fed. Narcotics Agents, the Court broke new ground by 9 holding that a person claiming to be the victim of an unlawful arrest and search 10 could bring a Fourth Amendment claim for damages against the responsible agents even though no federal statute authorized such a claim. The Court subsequently 11 extended Bivens to cover two additional constitutional claims in Davis v. Passman, a former congressional staffer’s Fifth Amendment claim of dismissal based on sex, 12 and in Carlson v. Green, a federal prisoner’s Eighth Amendment claim for failure to provide adequate medical treatment. 13 14 Hernandez v. Mesa, 589 U.S. 93, 33 (2020). 15 1. Fourth Amendment Claims under Bivens Against Private Citizens 16 Here, Plaintiff asserts claims for violation of the Fourth Amendment under a Bivens 17 action. The Ninth Circuit explained that “[a]ctions under § 1983 and those under Bivens are 18 identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”1 19 Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). But here the glaring issue is that Plaintiff 20 is asserting claims against private citizens. Neither Defendant Ashlee Andrews nor Defendant 21 Bank of America are federal agents or officers acting under the “color of federal law.” And there 22 are no allegations suggesting that Defendants, who are private parties, were acting in conjunction 23 with federal authority under “federal law.” Even if Plaintiff could allege such facts, that would 24 expand the application of Bivens into a new context and extending its application is precluded by 25 caselaw. Especially given (1) consumer protection laws are in place to address this type of alleged 26 27 1 The Court analyzed these same claims under 42 U.S.C. § 1983 in its prior screening order. ECF 1 || conduct and/or (2) Plaintiff can pursue conversion-type claims under state law. Thus, Plaintiff has 2 || not satisfied the pleading requirements for a Bivens Fourth Amendment Unreasonable Search and 3 || Seizure claim. V. Conclusion 5 IT IS THEREFORE RECOMMENDED that Plaintiff's complaint (ECF No. 5) be 6 || dismissed with prejudice. 7 ORDER 8 The deadline for any party to object to this recommendation was July 10, 2025, and no 9 party filed anything or asked to extend the deadline to do so. “[N]o review is required of a 10 magistrate judge’s report and recommendation unless objections are filed.” United States v. 11 |) Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Having reviewed the report and 12 recommendation, I find good cause to adopt it, and I do. IT IS THEREFORE ORDERED that 13 the Magistrate Judge’s Report and Recommendation [ECF No. 8] is ADOPTED in its 14 entirety, and this case is DISMISSED with prejudice. The Clerk of Court is directed to 15 ENTER JUDGMENT ACCORDINGLY AND CLOSE THIS CASE. 16
18 Dated: July 14, 2025 19 20 21 22 23 24 25 26 27 28