Mohammad v. Las Vegas Metropolitan Police Department

Filing 3

ORDER that 1 Application to Proceed in forma pauperis is GRANTED. Clerk's Office instructed to file Complaint. REPORT AND RECOMMENDATION that Plaintiff's 1 -1 Complaint be dismissed without leave to amend and the case be dismissed with prejudice. Objections to R&R due by 10/3/2017. Signed by Magistrate Judge Nancy J. Koppe on 9/19/2017. (Copies have been distributed pursuant to the NEF - SLD) Modified text on 9/20/2017 (EDS).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KHALID MOHAMMAD,

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Plaintiff(s),
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT,
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Defendant(s).
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__________________________________________)

Case No. 2:17-cv-02389-APG-NJK
REPORT AND RECOMMENDATION

Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C. § 1915

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to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted a complaint. Docket No. 1-1.

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I.

In Forma Pauperis Application

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Plaintiff submitted the affidavit required by § 1915(a) showing an inability to prepay fees and costs

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or give security for them. Docket No. 1. Accordingly, the request to proceed in forma pauperis will be

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granted pursuant to 28 U.S.C. § 1915(a). The Clerk’s Office is INSTRUCTED to file the complaint on

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the docket.

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II.

Screening Complaint

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Upon granting an application to proceed in forma pauperis, courts additionally screen the complaint

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pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action is legally

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

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from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a

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complaint under § 1915, the plaintiff should be given leave to amend the complaint with directions as to

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curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be

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cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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

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

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on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A properly

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pled complaint must provide a short and plain statement of the claim showing that the pleader is entitled

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to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule

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8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a

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“formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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

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

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556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory

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allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the

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line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570.

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Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by

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lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro

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se pleadings is required after Twombly and Iqbal).

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Here Plaintiff brings bare-bones allegations that he was imprisoned in Clark County Detention

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Center for roughly eight months in 2012 before being released. See Docket No. 1-1. Plaintiff’s conclusory

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allegations that he was a pretrial detainee fail to state a claim upon which relief can be granted. See, e.g.,

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Bell v. Wolfish, 441 U.S. 520, 523, 534 n.15 (1979) (the government may legally incarcerate an individual

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prior to a determination of his guilt or innocence, so long as it complies with constitutional requirements

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and statutory provisions).

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While leave to amend should be freely granted, in this case allowing opportunity for amendment

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would be futile because this same deficiency has been explained to Plaintiff already on at least three

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occasions. In 2014, United States District Judge James C. Mahan screened a similar complaint filed by

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Plaintiff based on the same underlying facts, concluding that Plaintiff failed to state a claim based on his

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conclusory allegations of being held as a pretrial detainee. See Mohammad v. Clark County Detention
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Center, Case No. 2:14-cv-1290-JCM-VCF, Docket No. 2 at 5 (D. Nev. Oct. 24, 2014) (discussing Wolfish,

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441 U.S. at 523, 534 n.15).1 Although Plaintiff was given the opportunity to amend his complaint in that

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case, he did not do so and his case was dismissed without prejudice. Id., Docket No. 4. In 2015, United

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States Magistrate Judge George W. Foley screened another complaint filed by Plaintiff arising out of the

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same underlying facts, concluding that Plaintiff failed to state a claim based on his conclusory allegations

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of being held as a pretrial detainee. See Mohammad v. Wolfson, Case No. 2:15-cv-00016-APG-GWF,

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Docket No. 2 at 3-4 (D. Nev. June 5, 2015) (discussing Wolfish, 441 U.S. at 523, 534 n.15). Although

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Plaintiff was given the opportunity to amend his complaint in that case, he did not do so and his case was

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dismissed with prejudice by United States District Judge Andrew P. Gordon. Id., Docket No. 5. In 2016,

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United States Magistrate Judge Cam Ferenbach screened a third complaint filed by Plaintiff arising out of

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the same underlying facts, concluding that Plaintiff failed to state a claim based on his conclusory

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allegations of being held as a pretrial detainee. Mohammad v. Las Vegas Metropolitan Police Department,

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Case No. 2:16-cv-1324-JAD-VCF, Docket No. 2 at 3-4 (D. Nev. June 27, 2016) (discussing Wolfish, 441

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U.S. at 523, 534 n.15). Although Plaintiff was given the opportunity to amend his complaint in that case,

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he has not done so and United States District Judge Jennifer A. Dorsey has indicated that such failure will

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result in dismissal with prejudice. See id., Docket No. 3 (D. Nev. July 19, 2016). In light of the numerous

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opportunities for amendment already afforded Plaintiff, the circumstances of this case do not warrant being

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given further leave to amend. Cf. City of Los Angeles v. San Pedro Boat Works, 635 F.3d 440, 454 (9th

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The Court took judicial notice of the state court records illuminating the circumstances of Plaintiff’s
pretrial detention:
Plaintiff was charged with unlawful possession of burglary tools, a gross misdemeanor. The
docket entries for plaintiff’s case demonstrates that on January 30, 2012, his bail was set for
$2000.00. On February 2, 2012, plaintiff had an initial arraignment and pled not guilty.
Plaintiff invoked the 60-day rule. The court set a trial date of March 5, 2012. The trial was
continued. On April 17, 2012, the court held a competency hearing and found plaintiff
competent. On June 25, 2012, plaintiff filed a petition for habeas corpus. On August 6,
2012, the case was reassigned to a different judge. On September 10, 2012, the prosecutor
moved to dismiss the case and the court dismissed the case.
See id. at 4-5 (internal citations omitted).
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Cir. 2011) (“the district court’s discretion to deny leave to amend is particularly broad where plaintiff has

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previously amended the complaint” (quoting Ascon Props., Inc. v. Mobile Oil Co., 866 F.2d 1149, 1160

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(9th Cir. 1989)).2

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III.

Conclusion

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For the reasons discussed more fully above, the undersigned RECOMMENDS that Plaintiff’s
complaint be dismissed without leave to amend and the case be dismissed with prejudice.

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DATED: September 19, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Report and Recommendation must be in writing

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and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts

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of appeal may determine that an appeal has been waived due to the failure to file objections within the

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specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file

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objections within the specified time and (2) failure to properly address and brief the objectionable issues

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waives the right to appeal the District Court’s order and/or appeal factual issues from the order of the

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District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist.,

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708 F.2d 452, 454 (9th Cir. 1983).

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The undersigned declines at this point to initiate the proceedings to have Plaintiff declared a
vexatious litigant. The undersigned CAUTIONS Plaintiff, however, that he is getting perilously close to
establishing the grounds to be declared a vexatious litigant, if such grounds do not already exist.
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