Yabut v. Las Vegas Metro Police Department

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 Robbyjoe V Yabut, 5 Case No. 2:24-cv-01014-APG-MDC

6 Plaintiff, ORDER SCREENING PLAINTIFF’S vs. COMPLAINT (ECF NO. 1-1) 7 Las Vegas Metro Police Department, 8 Defendants. 9

10 The Court previously granted pro se plaintiff Robbyjoe V Yabut’s informa pauperis application. 11 ECF No. 8. Since plaintiff is incarcerated, the Court also ordered plaintiff to pay his initial partial filing 12 fee. Id. The Clerk’s office confirmed that plaintiff paid the initial partial filing fee, thus the Court now 13 screens plaintiff’s complaint. ECF No. 1-1. The Court dismisses his complaint without prejudice, and 14 with leave to refile. Id. 15 I. WHETHER PLAINTIFF’S COMPLAINT STATES A PLAUSIBLE CLAIM 16 A. Legal standard 17 The Court reviews plaintiff’s complaint to determine whether the complaint is frivolous, 18 malicious, or fails to state a plausible claim. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil 19 20 Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim 21 showing that the [plaintiff] is entitled to relief.” Rule 8 ensures that each defendant has "fair notice of 22 what the plaintiff's claim is and the grounds upon which it rests." Dura Pharms., Inc. v. Broudo, 544 23 U.S. 336, 346, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005). The Supreme Court’s decision in Ashcroft v. 24 Iqbal states that to satisfy Rule 8’s requirements, a complaint’s allegations must cross “the line from 25 conceivable to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)). Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 1 complaint for failure to state a claim upon which relief can be granted. A complaint should be dismissed 2 under Rule 12(b)(6), “if it appears beyond a doubt that the plaintiff can prove no set of facts in support 3 4 of her claims that would entitle him to relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 5 “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 6 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 7 Gamble, 429 U.S. 97, 106 (1976)). If the Court dismisses a complaint under § 1915(e), the plaintiff should 8 be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from 9 the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United States, 10 70 F.3d 1103, 1106 (9th Cir. 1995). 11 B. Complaint 12 Plaintiff names the Las Vegas Metropolitan Police Department (“LVMPD”) as the sole 13 defendant in the header of the complaint, but the Court notes that on the next page of the complaint, the 14 plaintiff appears to name two additional defendants, police officers “James” and “Jason” with the 15 LVMPD. See ECF No. 1-1 at 1-2. Plaintiff states that he was a victim of the LVMPD’s “Event # 16 17 LLV230600025218.” Id. at 2. Plaintiff states that he was chased out a police substation and placed on 18 “L2K” Id. Plaintiff brings claims for (1) Freedom, (2) Freedom of press (retaliation), (3) injury (related 19 to medical care and access to the court). Id. at 3-7. Plaintiff states that officers James and Jason chased 20 him down the road near Rainbow and Warm Springs before they placed him on L2K. Id. at 4. Plaintiff 21 alleges that Officers Jason and James sent him to Spring Valley Hospital for the L2K. Id. at 5. Plaintiff 22 demands $24,000,000 in damages. Id. at 6. 23 a. Plaintiff’s “injury” and “freedom” claims 24 Plaintiff references L2K, which the Court liberally construes as a mental health hold since it 25 2 pertains to the officer’s sending plaintiff to the hospital. It appears that the officers believed plaintiff had 1 some sort of mental health condition or disorder. It is not clear if plaintiff is claiming that he sustained a 2 physical injury to his body while being sent to the hospital, or if he felt injured by being placed in a 3 4 mental health hold. It is not clear whether plaintiff agrees that he has some history of mental health 5 issues, or whether he is claiming they incorrectly regarded him as having a mental health issues. Even 6 liberally construing plaintiff's complaint, it does not state sufficient factual allegations about the 7 underlying dispute and the defendants' role in the matter to state a claim. If plaintiff amends, he must 8 state specific facts about the dispute and clarify what type of injury he suffered, if any. 9 b. Plaintiff’s “freedom of press – retaliation” claim 10 Plaintiff appears to be attempting to state a claim for freedom of the press violations. The First 11 Amendment of the U.S. Constitution provides that Congress shall make no law abridging the freedom of 12 the press. U.S. Const. amend. I. It is not clear from plaintiff’s complaint if he is alleging that he is a 13 journalist, as a freedom of the press claims typically pertain to the press’s freedom and not an 14 individual’s freedom to contact the press. E.g. see Saxbe v. Washington Post Co., 417 U.S. 843, 844, 94 15 S. Ct. 2811, 41 L. Ed. 2d 514 (1974) (journalists challenging a prison regulation limiting the press's 16 17 ability to interview inmates). Based on the limited information in plaintiff’s complaint, there is no 18 colorable First Amendment freedom of the press claim. 19 Regarding retaliation, to state a viable First Amendment retaliation claim in the prison context, a 20 plaintiff must allege: "(1) [a]n assertion that a state actor took some adverse action against an inmate (2) 21 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of 22 his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 23 goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004. Total chilling is not required; it is 24 25 3 enough if an official's acts would chill or silence a person of ordinary firmness from future First 1 Amendment activities. Id. 2 It is unclear from plaintiff’s complaint whether he is alleging that the officers retaliated against 3 4 him while he was on the mental health hold, as plaintiff does not state any facts regarding what 5 happened during the mental health hold. Even liberally construing plaintiff's complaint, it does not state 6 sufficient factual allegations about what happened during the mental health hold that might be deemed 7 retaliatory (and defendants' role in the matter) to state a claim. If plaintiff amends, he must state specific 8 facts about what happened during the mental health hold and what he believes amounted to retaliation. 9 c. The defendants: LVMPD and Officers James and Jason 10 The U.S. Supreme Court decision in Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 11 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), allows a plaintiff to recover from a municipality and local 12 governmental entities under § 1983 for violations of constitutional rights; however, he must allege one 13 of three theories to do so. Id.; Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010). 14 "First, a local government may be held liable 'when implementation of its official policies or established 15 customs inflicts the constitutional injury.'" Id. (quoting Monell, 436 U.S. at 708 (Powell, J. concurring)). 16 17 "Second, under certain circumstances, a local government may be held liable under § 1983 for acts of 18 omission, when such omissions amount to the local government's own official policy." Id. "Third, a 19 local government may be held liable under § 1983 when 'the individual who committed the 20 constitutional tort was an official with final policy-making authority' or such an official 'ratified a 21 subordinate's unconstitutional decision or action and the basis for it.'" Id. at 1250 (quoting Gillette v. 22 Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992)). 23 Regarding the LVMPD, plaintiff does not allege any facts suggesting that an official policy or 24 custom of the LVMPD resulted in a constitutional injury or that any conduct amounted to the LVMPD's 25 4 official policy. Plaintiff also does not allege that the acts as described were committed by an official 1 with final policy making authority. For these reasons, plaintiff's claims fail to state a claim against 2 LVMPD under Monell. 3 4 It also appears that plaintiff intended to include officers James and Jason as defendants in the 5 complaint, but plaintiff has not stated any facts to give these officers notice of the claims against them 6 pursuant to Rule 8. An individual defendant is not liable on a civil rights claim unless the facts establish 7 that defendant's personal involvement in some constitutional deprivation or a causal connection between 8 the defendant's wrongful conduct and the alleged constitutional deprivation. Van Snowden v. Cazares, 9 2015 U.S. Dist. LEXIS 191416, 2015 WL 12859714, at *8 (C.D. Cal. Aug. 21, 2015) (citing Hansen v. 10 Black, 885 F.2d 642, 646 (9th Cir. 1989)). If plaintiff amends, he must state specifically what each 11 officer did, and he should name them as defendants in the caption. 12 C. Conclusion 13 Plaintiff has not articulated any plausible claims It is possible that these deficiencies may be 14 cured through amendment. Plaintiff’s complaint is dismissed without prejudice. Plaintiff must file an 15 amended complaint explaining the circumstances of the case, the relief plaintiff seeks, and the law upon 16 17 which he relies in bringing the case. The amended complaint must be “complete in and of itself without 18 reference to the superseded pleading and must include copies of all exhibits referred to in the proposed 19 amended pleading. LR 15-1(a). 20 It is so Ordered: 21 1. That plaintiff Robbyjoe V Yabut’s Complaint (ECF No. 1-1) is DISMISSED without 22 prejudice with leave to amend. 23 2. That plaintiff has until February 12, 2025, to file an amended complaint addressing the 24 issues discussed above. Failure to timely file an amended complaint that addresses the 25 5 deficiencies noted in this Order may result in a recommendation for dismissal. 1 3. The Clerk of the Court is directed NOT to issue summons if plaintiff files an amended 2 complaint. The Court will issue a screening order on the amended complaint and address the 3 4 issuance of summons at that time, if applicable. See 28 U.S.C. § 1915(e)(2). 5 IT IS SO ORDERED. 6 DATE: January 13, 2025. 7 _________________________

Hon. Maximiliano D. Couvillier III 8 United States Magistrate Judge

10 NOTICE 11 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 12 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 13 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 14 may determine that an appeal has been waived due to the failure to file objections within the specified 15 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 16 17 This circuit has also held that (1) failure to file objections within the specified time and (2) failure 18 to properly address and brief the objectionable issues waives the right to appeal the District Court's order 19 and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 20 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR 21 IA 3-1, plaintiffs must immediately file written notification with the court of any change of address. The 22 notification must include proof of service upon each opposing party’s attorney, or upon the opposing party 23 if the party is unrepresented by counsel. Failure to comply with this rule may result in dismissal of the 24 action. 25 6