Avila v. Henderson Police Department

Filing 5

ORDER that 1 Application for Leave to Proceed in forma pauperis is granted. FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b) (2), the Nevada Department of Corrections shall pay to the Clerk of the United States District Court, District o f Nevada, 20% of the preceding months deposits to Plaintiff's account (inmate #1149052), in the months that the account exceeds $10.00, until the full $400 (which includes the $350 filing fee and $50 administrative fee) filing fees have been paid for this action. The Clerk shall send a copy of this Order to the Finance Division of the Clerk's Office and shall also send a copy of this Order to the attention of the Chief of Inmate Services for the Nevada Depart ment of Corrections. FURTHER ORDERED that Count I of Plaintiff's Complaint, alleging FourthAmendment violations by Defendants Sergeant John Doe, Officer Joe Doe #1 and Officer John Doe#2, in their individual capacity, may proceed once Plaintiff is able to properly identify them. FURTHER ORDERED that the Clerk of Court shall file Plaintiff's Complaint. Signed by Magistrate Judge George Foley, Jr on 2/1/17. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8
9
10
11
12

WESLEY N. AVILA,

)
)
Plaintiff,
)
)
vs.
)
)
SERGEANT JOHN DOE, et al.,
)
)
Defendants.
)
__________________________________________)

Case No. 2:16-cv-01831-GMN-GWF
ORDER
Application to Proceed in Forma
Pauperis (ECF No. 1) and Screening of
Complaint (ECF No. 1-1)

13
This matter comes before the Court on Plaintiff’s Application to Proceed in Forma

14
15

Pauperis (ECF No. 1), filed on August 1, 2016. Also before the Court is Plaintiff’s Motion for

16

Appointment of Counsel (ECF No. 2), filed on August 1, 2016.

17

BACKGROUND

18

Plaintiff brings this complaint pursuant to 42 U.S.C. § 1983 alleging that two unknown

19

officers and an unknown sergeant from the Henderson Police Department violated his civil rights

20

on or about November 25, 2014.1 Plaintiff alleges that on November 25, 2014, Defendants

21

unreasonably executed a search warrant that they obtained to search Plaintiff’s home in an attempt

22

to locate a hit and run suspect. Plaintiff states that when the officers arrived at his home, he gave

23

them the key to his home, advised them that all of the doors were unlocked and open, and then he

24

and his family left the home as instructed. Upon returning home, approximately eight hours later,

25

Plaintiff observed that his home and his personal belongings were completely destroyed. He

26

alleges for instance, that every window was blown out, the doors were ripped off the hinges, and

27
1

28

The caption of Plaintiff complaint lists the Henderson Police Department as a defendant in this action. However,
the body of the complaint only identifies the sergeant and two officers. If Plaintiff does in fact wish to assert claims against
the Henderson Police Department he may file a motion to amend his complaint and provide the Court with sufficient facts to
support his claim. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

1

there was tear gas covering everything in the home. Plaintiff therefore alleges that Defendants

2

violated his civil rights by “executing [a] search warrant with excessive and unnecessary use of

3

destructive force upon [his] residence.”

4
5

DISCUSSION
I.

6

Application to Proceed In Forma Pauperis
Plaintiff filed this instant action and attached a financial affidavit to his application and

7

complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff’s financial affidavit pursuant to

8

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

9

Plaintiff's request to proceed in forma pauperis in federal court is granted.

10
11

II.

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

12

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

13

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

14

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

15

relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2).

16

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

17

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

18

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

19

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

20

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

21

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

22

when reviewing the adequacy of a complaint or amended complaint.

23

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

24

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

25

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

26

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

27

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

28

the complaint, and the Court construes them in the light most favorable to the plaintiff. See
2

1

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

2

held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449

3

U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). While the standard

4

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

5

mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-1965 (2007). A

6

formulaic recitation of the elements of a cause of action is insufficient. Id., See Papasan v. Allain,

7

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

8
9

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

10

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

11

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

12

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

13

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

14

III.

Instant Complaint

15

A.

Municipal Employee Liability Under § 1983 - Monell Claim

16

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

17

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

18

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

19

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

20

under color of state law, caused the constitutional violation. Id.; see, e.g., Monroe v. Pape, 365 U.S.

21

167 (1961). Here, Plaintiff alleges in Count I that Defendants Sergeant John Doe, Officer John Doe

22

#1 and Officer John Doe #2 violated his Fourth Amendment right against unreasonable searches and

23

seizures when they conducted an allegedly unreasonable search of Plaintiff’s home. The Court finds

24

that Plaintiff’s claim against Defendant, in their individual capacity, does allege a Fourth

25

Amendment violation. However, the Court finds that Plaintiff failed to demonstrate what policy or

26

custom contributed to the violation of his constitutional right under the Fourth Amendment.

27

Therefore, the Court will dismiss the § 1983 claim against Defendants, in their official capacity,

28

without prejudice, and will give Plaintiff leave to amend his complaint to state sufficient facts to
3

1

state an official capacity claim, if he is able to do so.

2

B.

3

As a general rule, pleading fictitious or doe defendants is improper in federal court. See

“Doe” Defendants

4

Bogan v. Keene Corp., 852 F.2d 1238, 1239 (9th Cir.1988). This is because “[t]here is no provision

5

in the Federal Statutes or Federal Rules of Civil Procedure for use of fictitious parties.” Fifty

6

Associates v. Prudential Ins. Co., 446 F.2d 1187, 1191 (9th Cir.1970); see also McMillan v.

7

Department of the Interior, 907 F.Supp. 322 (D.Nev. 1995). “If there are unknown persons or

8

entities, whose role is known, that fact should be expressed in the complaint, but it is unnecessary

9

and improper to include “Doe” parties in the pleadings.” Graziose v. Am. Home Prod. Corp., 202

10

F.R.D. 638, 643 (D. Nev. 2001).

11

Because Plaintiff has not identified the Henderson sergeant and officers involved in the

12

allegedly improper search of his home, this case cannot proceed against them at this time. Once

13

Plaintiff is able to identify the sergeant and officers involved, he may file a motion to amend the

14

complaint to add each Defendant’s name. At that time, the Court can issue summons and this case

15

may proceed.

16

II.

Plaintiff’s Motion for Appointment of Counsel
There is no constitutional right to the appointment of counsel in civil cases.2 Ivey v. Bd. of

17
18

Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). A court may only designate counsel

19

pursuant to 28 U.S.C. § 1915(e)(1) in exceptional circumstances. Agyeman v. Corrs. Corp. of Am.,

20

390 F.3d 1101, 1103 (9th Cir. 2004), cert. denied sub nom. Gerber v. Agyeman, 545 U.S. 1128

21

(2005). In determining whether counsel should be appointed, the Court has discretion to consider

22

four relevant factors: (1) the plaintiff’s financial resources; (2) the efforts made by the plaintiff to

23

secure counsel; (3) the meritoriousness of the plaintiff’s claim; and (4) the ability of the petitioner to

24

articulate his claims pro se in light of the complexity of the legal issues involved. Ivey, 673 F.2d at

25

269; Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

26
27
28

2

Plaintiff’s motion cites to Title 18 § 3006A of the Federal Rules of Criminal Procedure which is inapplicable here
because 42 U.S.C. § 1983 provides for civil actions for deprivation of rights.

4

1

While the Court has found that Plaintiff may proceed in federal court in forma pauperis, the

2

Court does not believe Plaintiff has demonstrated that the remaining factors weigh in favor of

3

appointing counsel at this time. Plaintiff does not set forth any attempts he has made to obtain

4

counsel and from a review of his complaint, Plaintiff appears to be able to sufficiently articulate his

5

claims. In addition, although the Court has found that Plaintiff’s Complaint has made the threshold

6

showing to proceed past the initial screening, the Court is not convinced that Plaintiff’s claims are

7

meritorious. Therefore, the Court will deny Plaintiff’s motion, without prejudice. Plaintiff may

8

renew his motion at a later time if he believes he would be able to make the requisite showing of

9

necessity.

10

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

11

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

12

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

13

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

14

complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended

15

complaint, the original pleading no longer serves any function in the case. Therefore, in an amended

16

complaint, as in an original complaint, each claim and the involvement of each defendant must be

17

sufficiently alleged. Plaintiff is advised that litigation will not commence upon the filing of an

18

amended complaint. Rather, the Court will need to conduct an additional screening of the amended

19

complaint pursuant to 28 U.S.C. § 1915A. If Plaintiff fails to file an amended complaint or fails to

20

cure the deficiencies identified above, the Court will recommend that those claims be dismissed with

21

prejudice.

22

Accordingly,

23

IT IS THEREFORE ORDERED that Plaintiff’s Application to Proceed in Forma

24

Pauperis is granted. Plaintiff shall not be required to pay an initial partial filing fee. However,

25

even if this action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C.

26

§ 1915(b)(2).

27
28

IT IS FURTHER ORDERED that the movant herein is permitted to maintain this action to
conclusion without the necessity of prepayment of any additional fees or costs or the giving of
5

1

security therefor. This Order granting forma pauperis status shall not extend to the issuance of

2

subpoenas at government expense.

3

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada

4

Department of Corrections shall pay to the Clerk of the United States District Court, District of

5

Nevada, 20% of the preceding month’s deposits to Plaintiff’s account (inmate #1149052), in the

6

months that the account exceeds $10.00, until the full $400 (which includes the $350 filing fee and

7

$50 administrative fee) filing fees have been paid for this action. The Clerk of the Court shall send a

8

copy of this Order to the Finance Division of the Clerk’s Office. The Clerk shall also send a copy of

9

this Order to the attention of the Chief of Inmate Services for the Nevada Department of

10

Corrections, P.O. Box 7011, Carson City, NV 89702.

11

IT IS FURTHER ORDERED that Count I of Plaintiff’s Complaint, alleging Fourth

12

Amendment violations by Defendants Sergeant John Doe, Officer Joe Doe #1 and Officer John Doe

13

#2, in their individual capacity, may proceed once Plaintiff is able to properly identify them.

14
15
16

IT IS FURTHER ORDERED that the Clerk of Court shall file Plaintiff’s Complaint (ECF
No. 1-1).
DATED this 1st day of February, 2017.

17
18
19
20

GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
6