Albanese v. Las Vegas Metropolitan Police Department

Filing 48

REPORT AND RECOMMENDATION Recommending that Plaintiff's claims against Defendant Doug Gillespie be dismissed with prejudice; dismissing 17 Amended Complaint with leave to amend. Objections to R&R due by 10/16/2017. Amended Complaint deadline: 11/2/2017. Signed by Magistrate Judge George Foley, Jr on 10/2/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GRACE ALBANESE,

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Plaintiff,
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT and DOUG GILLESPIE,
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Defendant.
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__________________________________________)

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Case No. 2:16-cv-00532-RFB-GWF
ORDER AND REPORT
AND RECOMMENDATION

This matter comes before the Court on the screening of Plaintiff’s Amended Complaint

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(ECF No. 17), filed on October 17, 2016. The Court granted Plaintiff in forma pauperis status on

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October 3, 2016. See (ECF No. 13).

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BACKGROUND AND DISCUSSION
I.

Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which

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relief may be granted, or seeks monetary relief from a defendant/third party plaintiff who is

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immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be

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dismissed for failure to state a claim upon which relief may be granted “if it appears beyond a

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doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to

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relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed

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as frivolous if it is premised on a nonexistent legal interest or delusional factual scenario. Neitzke

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v. Williams, 490 U.S. 319, 327–28 (1989). Moreover, “a finding of factual frivolousness is

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appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,

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whether or not there are judicially noticeable facts available to contradict them.” Denton v.

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Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 1915(e), the

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plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies,

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unless it is clear from the face of the complaint that the deficiencies could not be cured by

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amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
The Court shall liberally construe a complaint by a pro se litigant. Eldridge v. Block, 832

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F.2d 1132, 1137 (9th Cir. 2007). This is especially important for civil rights complaints. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, a liberal construction may not be used to

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supply an essential element of the claim absent from the complaint. Bruns v. Nat’l Credit Union

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Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Board of Regents, 673 F.2d 266, 268

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(9th Cir. 1982)).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint

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for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d

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719, 723 (9th Cir. 2000). A properly pled complaint must provide a “short and plain statement of

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the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.

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Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual

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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the

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elements of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan v.

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Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations

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contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal,

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129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory

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allegations, do not suffice. Id. at 1949. Secondly, where the claims in the complaint have not

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crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550

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U.S. at 570.

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II.

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Instant Complaint
The Court originally dismissed Plaintiff’s one-page complaint because it provided the Court

with no factual basis for her claims. See Order (ECF No. 13). Plaintiff filed an amended
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complaint pursuant to 42 U.S.C. § 1983 against the Las Vegas Metropolitan Police Department

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(“LVMPD”) and Doug Gillespie, in his official capacity, alleging that her Fourth, Fifth, Ninth and

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Fourteenth Amendment rights were violated. Plaintiff asserts that Defendant Gillespie caved into

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pressure by Homeland Security who was working with members of LVMPD to remove Plaintiff

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from Las Vegas. Officers from LVMPD allegedly stalked Plaintiff and wire-tapped her telephone.

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Plaintiff requests damages from Defendants for their “utter lack of regard [of] my rights and the

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rights of my daughter who suffered as well.” Amended Complaint (ECF No. 17), pg. 5.

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A.

Municipal Entity Liability Under § 1983 - Monell Claim

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Section 1983 suits against local governments alleging constitutional rights violations by

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government officials cannot rely solely on respondeat superior liability. See Whitaker v. Garcetti,

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486 F.3d 572, 581 (9th Cir. 2007); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

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(1978). A plaintiff can bring a § 1983 action against a local government entity if the plaintiff can

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show that the entity had an established policy or custom that caused employees who implemented

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the policy or custom to violate the constitutional rights of others. Monell, 436 U.S. at 690–92; see

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also, Van Ort v. Estate of Stanewich, 92 F. 3d 831 (9th Cir. 1996). However, absent such a policy

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or custom, a local government entity cannot be held liable solely because one of its employees

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commits an unlawful wrong against another. Id. at 691. Here, from what the Court can ascertain,

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Plaintiff asserts that LVMPD violated her rights because they stalked her on numerous occasions.

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The rest of Plaintiff’s amended complaint does not make sense and fails to state specific dates on

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which the alleged constitutional violations took place. Moreover, Plaintiff does not demonstrate

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that LVMPD’s conduct was driven by a policy or custom implemented by LVMPD and that the

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policy or custom was the driving force behind the alleged violations of Plaintiff’s constitutional

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rights. Therefore, the Court will dismiss the § 1983 claim against LVMPD without prejudice, and

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will give Plaintiff leave to amend her amended complaint to state sufficient facts to state a claim, if

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he is able to do so.

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B.

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State officials sued in their official capacity for damages are not persons for purposes of §

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1983. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n. 24 (1997). Official-suits

Municipal Employee Liability Under § 1983

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filed against state officials are merely an alternative way of pleading an action against the entity of

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which the defendant is an officer. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Therefore, in an

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official-capacity suit, the plaintiff must demonstrate that a policy or custom of the governmental

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entity of which the official is an agent was the moving force behind the violation. Id.; See also

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Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690–92 (1978). Defendant Doug

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Gillespie was a state official at the times discussed in Plaintiff’s complaint and he is therefore not a

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person for § 1983 purposes. As a result, the Court will recommend that Plaintiff’s claims against

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Defendant Gillespie be dismissed with prejudice.

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If Plaintiff elects to proceed in this action by filing an amended complaint, she is informed

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that the court cannot refer to a prior pleading in order to make her amended complaint complete.

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Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any

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prior pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Valdez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011); see Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged. Plaintiff

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is advised that litigation will not commence upon the filing of an amended complaint. Rather, the

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Court will conduct an additional screening of the amended complaint pursuant to 28 U.S.C. §

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1915(e). If Plaintiff fails to file an amended complaint or fails to cure the deficiencies identified

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above, the Court will recommend that the complaint be dismissed with prejudice. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Complaint (ECF No. 17) be dismissed

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without prejudice with leave to amend. Plaintiff shall have until November 2, 2017 to file an

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amended complaint correcting the noted deficiencies.

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RECOMMENDATION

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IT IS HEREBY RECOMMENDED that Plaintiff’s claims against Defendant Doug

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Gillespie be dismissed with prejudice for failure to state a claim upon which relief may be granted.

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be
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in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has

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held that the courts of appeal may determine that an appeal has been waived due to the failure to

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file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit

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has also held that (1) failure to file objections within the specified time and (2) failure to properly

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address and brief the objectionable issues waives the right to appeal the District Court’s order

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and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153,

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1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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DATED this 2nd day of October, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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