Ferguson v. Baker et al

Filing 9

ORDER that the 6 Amended Complaint is Dismissed with leave to Amend. Amended Complaint deadline: 2/23/2017. Signed by Magistrate Judge Nancy J. Koppe on 1/24/2017. (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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CHRISTOPHER EDWARD FERGUSON,

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Plaintiff(s),

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vs.

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CHAD BAKER, et al.,

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Defendant(s).

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Case No. 2:16-cv-01525-APG-NJK
ORDER

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Plaintiff is proceeding in this action pro se and requested authority pursuant to 28 U.S.C.

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§ 1915 to proceed in forma pauperis. Docket No. 1. On July 20, 2016, the Court granted Plaintiff’s

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application, and screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915. Docket No. 4. The

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Court dismissed Plaintiff’s complaint with leave to amend. Id. The Court identified numerous

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deficiencies in Plaintiff’s complaint, and provided him an opportunity to cure those defects. See id.

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I.

DISCUSSION

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Plaintiff has now filed an amended complaint, which he frames as an action under 42 U.S.C.

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§ 1983. Docket No. 6. Plaintiff contests the decision of three police officers to seize his vehicle, as

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well as Defendant Fast Tow, Inc.’s subsequent involvement in towing and impounding it. See, e.g.,

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id. at 3, 6. It appears that Plaintiff is challenging a seizure that occurred in connection with a traffic

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citation. Id. at 3. In his amended complaint, Plaintiff asserts that Defendant Baker ticketed Plaintiff

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for a traffic violation, but that Defendant “Baker’s charges were dismissed because he didn’t show

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up.” Id.1

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The Court, notes, however, that Plaintiff asserted in his initial complaint that he was
found guilty of a traffic violation. Docket No. 1-1 at 11.

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The Court construes Count I of the amended complaint as attempting to allege a § 1983 claim

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for deprivation of due process under the Fourteenth Amendment against Defendant Baker. See id.

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at 4. To state a claim under § 1983, a plaintiff must allege that a right secured by the Constitution

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or statutory law has been violated, and the deprivation was committed by a person acting under color

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of law. See Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). Plaintiff meets these basic

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requirements by identifying a constitutional amendment and alleging that Defendant Baker acted

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under color of law as a police officer. Id. at 2-3. However, the Court must also examine whether

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Plaintiff states a claim against Defendant Baker under the Fourteenth Amendment.

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Plaintiff relies primarily on the conclusory assertion that Defendant Baker “took away [his]

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notice and opportunity [t]o defend the seizure in court.” Id. at 4. Plaintiff also notes that Defendant

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Baker failed to fill out or provide some forms. Id. at 4-5. Plaintiff’s conclusory assertion fails to

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satisfy the pleading requirements. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that

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although Rule 8 does not require detailed factual allegations, it demands “more than labels and

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conclusions”) (internal quotation marks and citation omitted). Thus, Plaintiff fails to state a claim

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upon which relief can be granted against Defendant Baker.

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The Court construes Count II as attempting to allege a § 1983 claim for deprivation of

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Plaintiff’s procedural due process rights against Defendant Fast Tow, Inc. See Docket No. 6 at 5.

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Plaintiff alleges that Defendant Fast Tow, Inc. violated his Fourth Amendment rights, and that it

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worked in concert with the state. See id. The Fourth Amendment applies to searches and seizures,

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not procedural due process. Moreover, Plaintiff’s factual allegations are again vague and limited.

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See id. Thus, Plaintiff fails to state a claim upon which relief can be granted against Defendant Fast

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Tow, Inc.

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Additionally, Plaintiff cites a variety of other authorities in isolation. See, e.g., id. at 2

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(referring to 28 U.S.C. § 1343, and 42 U.S.C. §§ 1985 and 1986);id. at 4 (quoting the Nevada

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Constitution). As the Court previously explained, even liberally construing Plaintiff’s complaint,

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bald citations of authority do not satisfy Rule 8. Docket No. 4 at 3. Additionally, Plaintiff makes

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conclusory assertions regarding an alleged conspiracy between Defendants John Doe #1 and John

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Doe #2. Docket No. 6 at 3. These assertions do not satisfy the pleading requirements. See, e.g.,

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Iqbal, 556 U.S. at 678. Plaintiff therefore fails to state a claim upon which relief can be granted

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against these defendants. The Court gives Plaintiff one final opportunity to cure the deficiencies in

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his complaint.

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II.

CONCLUSION

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Accordingly,

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IT IS ORDERED, for the reasons stated above, that the amended complaint is

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DISMISSED, with leave to amend. Plaintiff shall have until February 23, 2017, to file a second

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amended complaint, if Plaintiff believes he can cure the noted deficiencies. If Plaintiff chooses to

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file a second amended complaint, he is advised that an amended complaint supersedes (replaces) the

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original complaint and, thus, the second amended complaint must be complete in itself. See Hal

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Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that

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“[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading

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supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

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(holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims

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in a subsequent amended complaint to preserve them for appeal). Plaintiff’s second amended

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complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue

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in this lawsuit. Failure to comply with this Order will result in the recommended dismissal of this

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case, without prejudice.

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IT IS SO ORDERED.

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DATED: January 24, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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