Childs, II v. Wynn Las Vegas, LLC

Filing 34

ORDER. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 28 defendant's motion to dismiss plaintiff's amended complaint be, and the same hereby is, GRANTED, but plaintiff's amended complaint 27 shall be dismissed without prejudice. Signed by Judge James C. Mahan on 12/27/16. (Copies have been distributed pursuant to the NEF - ADR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 DONALD RICHARD CHILDS II, 8 Plaintiff(s), 9 10 WYNN LAS VEGAS, LLC, Defendant(s). 12 14 15 16 ORDER v. 11 13 Case No. 2:15-CV-1342 JCM (GWF) Presently before the court is defendant Wynn Las Vegas, LLC’s (“Wynn”) motion to dismiss pro se plaintiff Donald Childs, II’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 28). Plaintiff has filed an opposition, (ECF No. 31) and defendant replied (ECF No. 33). I. Introduction 17 Plaintiff brings this case under 42 U.S.C. § 1983, alleging that a corporate investigator’s 18 ban of defendant from the “Wynn/Encore” violated his Fourteenth Amendment rights of equal 19 protection and substantive due process. (ECF No. 27 at 3–7). Plaintiff states that on June 6th, 20 2015, he was confronted by a Wynn corporate investigator who indicated that plaintiff was 21 suspected of stealing the jacket the latter possessed. Plaintiff further alleges that the corporate 22 investigator told plaintiff that he would be “trespassed for being listed as a suspect for a prior theft 23 24 25 26 in March.”1 (ECF No. 27 at 4). Ultimately, plaintiff first appears to base his claims upon the alleged Wynn employee’s statements that plaintiff would not be able to enter the Wynn resort because of “baseless allegation of theft.” (Id. at 5). The second foundation for plaintiff’s claims appears to be an alleged later encounter with Wynn employees, who informed plaintiff that he “was officially trespassed.” (ECF No. 27 at 5, 7). 27 28 James C. Mahan U.S. District Judge However, it appears that plaintiff was not “trespassed” as a result of the first alleged encounter with Wynn employees. (ECF No. 27). 1 1 II. Legal Standard 2 The court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief 3 can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short and 4 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 5 Although Rule 8 does not require “detailed factual allegations,” it “requires more than labels and 6 conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Bell 7 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule 8 “does not unlock the doors of discovery 8 9 for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678– 79 (2009). A complaint must state plausible claims. Id. at 679. For a claim to be plausible on its face 10 it must “plead[] factual content that allows the court to draw the reasonable inference that the 11 defendant is liable for the misconduct alleged.” Id at 678. If a complaint merely has “[t]hreadbare 12 recitals of the elements of a cause of action, supported by mere conclusory statements,” it does not 13 meet the requirements for plausibility. Id. 14 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply 15 when considering a motion to dismiss. Id. at 678–679. First, the court must accept as true all of 16 the allegations contained in a complaint. Id. at 678. However, this requirement is inapplicable to 17 18 19 legal conclusions. Id. at 680. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 678. When the allegations in a complaint have not crossed “the line from conceivable to plausible, [plaintiff’s] complaint must be dismissed.” Twombly, 550 U.S. at 570. 20 21 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court held, 22 First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. 23 24 25 26 Id. 27 28 James C. Mahan U.S. District Judge -2- 1 III. Discussion 2 “To establish a prima facie case under 42 U.S.C. § 1983, [a plaintiff] must demonstrate 3 proof that (1) the action occurred ‘under color of law’ and (2) the action resulted in a deprivation 4 of a constitutional right or a federal statutory right.” McDade v. West, 223 F.3d 1135, 1139 (9th 5 Cir. 2000) (quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981)). 6 A violation of the Fourteenth Amendment generally requires the presence of state action, 7 and not mere “private conduct.” See Jackson v. Metro. Edison, Co., 419 U.S. 345, 349 (1974); see 8 9 also Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). “The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights 10 11 12 fairly attributable to the [government]?” Sutton, 192 F.3d at 835 (quoting Rendell–Baker v. Kohn, 457 U.S. 830, 838 (1982)). However, this court conducts the instant analysis assuming arguendo that state action is present in this case. 13 First, to assert “a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection 14 Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent 15 or purpose to discriminate against the plaintiff based upon membership in a protected class.” 16 Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (quoting Barren v. Harrington, 152 F.3d 17 18 19 20 1193, 1194 (9th Cir. 1998)). Here, plaintiff fails to allege that he is a member of a class protected by the Fourteenth Amendment’s Equal Protection Clause. See Furnace, 705 F.3d at 1030; (ECF No. 27) (“Plaintiff herein brings forth two ‘class of one’ claims . . . .”). Therefore, his equal protection claim does not survive Rule 12(b)(6) scrutiny. 21 Next, the defendant in this case is a business, not any individual person. (ECF No. 27). In 22 light of Ninth Circuit precedent, plaintiff’s claims are properly analyzed within the framework 23 provided by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). See Tsao, 698 F.3d 1128, 1143– 24 44 (9th Cir. 2012) (Applying Monell in a § 1983 action where plaintiff alleged constitutional 25 violations against a casino owner based on a casino security guard’s exercise of authority pursuant 26 27 28 James C. Mahan U.S. District Judge to NRS § 207.200). To succeed on a Monell claim, “[plaintiff] must demonstrate that an ‘official policy, custom, or pattern’ on the part of [defendant casino owner] was ‘the actionable cause of the claimed injury.’” Tsao, 698 F.3d 1128, 1143 (9th Cir. 2012). The term “policy” in this context -3- 1 means “a deliberate choice to follow a course of action . . . made from among various alternatives 2 by the official or officials responsible for establishing final policy with respect to the subject matter 3 in question.” Id. (quoting Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006)). To that end, a plaintiff may allege that a defendant has policies “that result in the 4 5 6 municipality itself violating someone’s constitutional rights or instructing its employees to do so, and those that result, through omission, in municipal responsibility for a constitutional violation committed by one of its employees.” Id. (internal quotation omitted). A plaintiff alleging that a 7 defendant’s omission violated the former’s constitutional rights must show that defendant’s 8 corresponding policy indicates “deliberate indifference to the plaintiff’s constitutional right.” Id. 9 (internal quotations omitted). 10 Plaintiff’s amended complaint does not discuss or even mention any such “policy” as it is 11 defined here. See Long, 442 F.3d at 1185; (ECF No. 27). Therefore, plaintiff’s second claim also 12 fails. 13 14 15 In sum, plaintiff’s amended complaint does not plausibly assert his constitutional claims brought under § 1983, even when accounting for his pro se status. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (discussing the interpretation of pro se pleadings). Accordingly, 16 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion to 17 dismiss plaintiff’s amended complaint (ECF No. 28) be, and the same hereby is, GRANTED, but 18 plaintiff’s amended complaint (ECF No. 27) shall be dismissed without prejudice. 19 20 21 DATED December 27, 2016. __________________________________________ UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -4-

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