Saterstad et al v. State of Nevada et al

Filing 8

ORDER granting 6 Motion/Application for Leave to Proceed in forma pauperis; ORDER granting 7 Motion/Application for Leave to Proceed in forma pauperis; Amended Complaint deadline: 1/8/2018. Plaintiff's claims are dismissed without prejudice with leave to amend. Signed by Magistrate Judge George Foley, Jr on 12/6/2017. (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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MARTIN SATERSTAD and
RICHARD SATERSTAD,

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Plaintiffs,
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vs.
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CAPTAIN MACZALA, C. #3231, et al.,
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Defendants.
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__________________________________________)

Case No. 2:16-cv-01702-JCM-GWF
ORDER

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This matter comes before the Court on Plaintiffs’ Applications to Proceed in Forma

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Pauperis (ECF Nos. 6 and 7), filed on October 12, 2017. Also before the Court is the screening of

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Plaintiffs’ Amended Complaint (ECF No. 5), filed on October 6, 2017.

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BACKGROUND

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Plaintiffs’ complaint is brought pursuant to 42 U.S.C. § 1983. Plaintiffs allege that officers

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with the Las Vegas Metropolitan Police Department performed an illegal search and seizure of their

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residence on October 15, 2009 in violation of the Fourth, Fifth and Eighth Amendments. Officers

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arrived at Plaintiffs residence after Plaintiffs called 911 following an alleged armed robbery.

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Plaintiffs assert that rather than treat Plaintiffs like the victims they were, the police arrested

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Plaintiffs for murder and then conducted an illegal search of Plaintiffs’ residence to gain access to

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the “Medicinal Marijuana grow” that Plaintiff, Richard Saterstad, had in his room. Plaintiffs argue

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that their rights have been continually violated since that time and they now seek compensatory

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damages. Plaintiffs also argue that they have been subjected to libel and slander due to the media’s

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portrayal of them as murderers.

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...

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DISCUSSION
I.

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Application to Proceed In Forma Pauperis
Plaintiffs filed this instant action and attached financial affidavit to their applications and

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complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiffs’ financial affidavits pursuant

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to 28 U.S.C. § 1915, the Court finds that Plaintiffs are unable to pre-pay the filing fee. As a result,

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Plaintiffs’ requests to proceed in forma pauperis in federal court are granted.

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II.

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Screening the Complaint
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks

redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

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that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek

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monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),

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(2).

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In addition to the screening requirements under § 1915A, pursuant to the PLRA, a federal

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court must dismiss a prisoner’s claims, “if the allegation of poverty is untrue,” or if the action “is

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frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary

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relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a

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complaint for failure to state a claim upon which relief may be granted is provided for in Federal

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Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under Section 1915(e)(2)

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when reviewing the adequacy of a complaint or amended complaint.

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Review under Fed. R. Civ. P. 12(b)(6) is essentially a ruling on a question of law. See

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Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure

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to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support

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of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th

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Cir. 1999). In making this determination, the Court takes as true all allegations of material fact

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stated in the complaint, and the Court construes them in the light most favorable to the plaintiff.

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See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint

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are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe,
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449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). While the

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standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide

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more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-

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1965 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., See

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Papasan v. Allain, 478 U.S. 265, 286 (1986).
All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the

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prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on legal

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conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims

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of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful

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factual allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319,

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327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

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III.

Instant Complaint

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A.

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42 U.S.C. § 1983 creates a path for the private enforcement of substantive rights created by

Plaintiff’s § 1983 Claim

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the Constitution and Federal Statutes. Graham v. Connor, 490 U.S. 386, 393-94 (1989). In order

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to state a claim under § 1983, a plaintiff “must allege the violation of a right secured by the

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Constitution and the laws of the United States, and must show that the alleged deprivation was

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committed by a person acting under color of law.” West v. Atkins, 487 U.S. 42, 48-49 (1988).

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A.

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To succeed on a Monell official-capacity action against a municipality’s employee (e.g., a

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police officer), a plaintiff must demonstrate that a policy or custom of an entity contributed to the

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violation of federal law. Kentucky v. Graham, 473 U.S. 159, 166 (1985). In order for a plaintiff to

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establish personal liability in a 1983 action, it is enough to show that the municipal employee,

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acting under color of state law, caused the constitutional violation. Id.; see, e.g., Monroe v. Pape,

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365 U.S. 167 (1961).

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Municipal Employee Liability Under § 1983 - Monell Claim

Plaintiffs list 49 officers (including Caption Maczala) as defendants in this case. Plaintiffs

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state that Caption Maczala is “legally responsible for overseeing the operations of his officers” and

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states that the other 48 officers “held the ranks listed, and were assigned to the area of Las Vegas in
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question.” Amended Complaint (ECF No. 5), pgs 4:16 and 5:8-9. Plaintiffs, however, do not

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indicate which officers actually conducted the allegedly illegal search of their residence. As a

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result, the Court is unable to find that Plaintiffs have stated a Fourth or Fifth Amendment violation

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claim against the officers who conducted the search in their individual capacities. Plaintiffs have

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also failed to demonstrate what policy or custom contributed to the alleged violations of their

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constitutional rights. Therefore, notwithstanding Plaintiffs’ failure to specifically identify the

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officers who conducted the search, Plaintiffs have failed to state a claim against the officers in their

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official capacity. The Court will allows Plaintiffs one more chance to amend their complaint to

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state sufficient facts to state both an individual and official capacity claim.

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B.

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Plaintiffs’ Eighth Amendment claims appear to be improper. The Eighth Amendment does

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not give rise to a claim by a pretrial detainee. Graham v. Connor, 490 U.S. 386, 398–99, 109 S.Ct.

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1865, 1873, 104 L.Ed.2d 443 (1989)(stating that the “Eighth Amendment standard applies “only

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after the State has complied with the constitutional guarantees traditionally associated with criminal

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prosecutions.”)(quoting Ingraham v. Wright, 430 U.S. 651, 671, n. 40, 97 S.Ct. 1401, 1412, n. 40,

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51 L.Ed.2d 711 (1977)). The Eighth Amendment is only implemented post conviction, when the

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injury suffered is “part of the total punishment to which the individual is being subjected for his

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crime.” Ingraham, 430 U.S. at 669. Plaintiffs complaint does not reference any facts that could

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sustain a claim under the Eighth Amendment. Rather, Plaintiffs argue that excessive force was

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used during the search of their residence, not post-conviction. Therefore, the Court will dismiss

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Plaintiffs’ Eighth Amendment claim without prejudice.

Plaintiffs’ Eight Amendment Claim

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B.

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Plaintiffs assert claims for libel and slander that resulted from the media’s portrayal of them

Plaintiffs’ Claims for Libel and Slander

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as murderers. Plaintiffs assert that because they were wrongfully charged with murder (which,

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allegedly, was later dropped) the media wrote articles entitled “Two brothers charged with murder.”

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Amended Complaint (ECF No. 5), pg. 6. Plaintiffs argue that they continue to suffer the

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ramifications from these articles because they will now have difficulty finding employment.

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Defamation is a false written or oral statement that damages another's reputation. Black's
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Law Dictionary (10th ed. 2014). To assert a defamation of character claim in Nevada, the plaintiff

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must prove (1) a false and defamatory statement by a defendant concerning the plaintiff; (2) an

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unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual

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or presumed damages. See Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 718, 57 P.3d 82, 90

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(2002); Restatement (Second) of Torts § 558 (1977).

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Because Plaintiffs’ complaint does not specifically reference which defendant(s) made the

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false accusations against them, the Court cannot allow it to proceed at this time. The Court will

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allow Plaintiffs leave to amend. The second amended complaint should identify which defendant

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officer(s) made the arrest and false accusations against them.

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If Plaintiffs elects to proceed in this action by filing a second amended complaint, they are

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informed that the court cannot refer to a prior pleading in order to make their second amended

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complaint complete. Local Rule 15–1 requires that an amended complaint be complete in itself

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without reference to any prior pleading. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967). Once

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Plaintiffs file a second amended complaint, the original pleading no longer serves any function in

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the case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged. Plaintiffs are advised that litigation

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will not commence upon the filing of a second amended complaint. Rather, the Court will need to

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conduct an additional screening of the second amended complaint pursuant to 28 U.S.C. § 1915A.

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If Plaintiffs fail to file a second amended complaint or fail to cure the deficiencies identified above,

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

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IT IS HEREBY ORDERED that Plaintiffs’ Applications to Proceed in Forma Pauperis

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(ECF Nos. 6 and 7) are granted. Plaintiff shall not be required to pre-pay the full filing fee of four

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hundred dollars ($400.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.
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IT IS FURTHER ORDERED that Plaintiff’s claims are dismissed without prejudice with

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leave to amend. Plaintiffs shall have until January 8, 2018 to file a second amended complaint

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correcting the noted deficiencies.

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DATED this 6th day of December, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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