Arnold v. United States Forest Service

Filing 11

ORDER accepting in part ECF No. 3 R&R; dismissing without prejudice ECF No. 5 Amended Complaint in regards to the retaliation claim based on the Rehabilitation Act and dismissing it with prejudice in all other respects; giving Plaintiff 30 days to file an amended complaint; denying as moot any "motions" included in ECF No. 10 Objections. Signed by Judge Miranda M. Du on 6/13/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID ARNOLD,
Plaintiff,

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Case No. 3:14-cv-00421-MMD-WGC

v.
UNITED STATES FOREST SERVICE,

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ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

Defendant.

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I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (ECF No. 6) (“R&R”) relating to Plaintiff David Arnold’s (“Arnold”)

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amended complaint (ECF No. 5). The Court has reviewed Plaintiff’s objections. (ECF No.

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10.) For the reasons discussed below, the R&R is accepted in part. Arnold’s amended

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complaint is dismissed without prejudice with respect to his Rehabilitation Act claim and

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dismissed with prejudice on all other counts.

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II.

BACKGROUND

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Arnold, litigating pro se, filed an application to proceed in forma pauperis

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accompanied by a proposed complaint on August 13, 2014. (ECF Nos. 1, 1-1.) His

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complaint centers on the allegations that he was forced, by threat of arrest and seizure

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of his belongings, to leave his campsite in a national park before the applicable park

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rules required him to do so.1 Arnold seeks $1,000,000 in damages, as well as injunctive

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relief, fees and costs. (ECF No. 1-1 at 13.) On August 26, 2014, the Magistrate Judge

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Arnold objects to the R&R’s characterization that he was asked rather than
forced or ordered to leave his campsite. For the purposes of its analysis, the Court will
use Arnold’s preferred formulation.

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granted Arnold’s application to proceed in forma pauperis and screened the complaint

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pursuant to 28 U.S.C. § 1915. (ECF No. 3.) Arnold’s complaint was dismissed without

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prejudice because it failed to state a claim, and he was given leave to amend to correct

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the deficiencies noted by the Magistrate Judge. (Id.) Arnold filed an amended complaint

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on September 15, 2014. (ECF No. 5.) Judge Cobb issued the R&R, recommending this

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Court dismiss the amended complaint with prejudice and deny Arnold’s request for a

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preliminary injunction as moot. (ECF No. 6.)

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In his objections, Arnold raises a number of procedural and substantive

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arguments. He argues that a magistrate judge had no jurisdiction to screen his complaint

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(ECF No. 10 at 4), that Magistrate Judge Cobb was biased because he had also

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presided over criminal proceedings against Arnold (id. at 7),2 that the R&R

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mischaracterizes the allegations (id. at 15-17), that his allegations support cognizable

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claims for relief (id. at 22-24), and finally that even if he has not stated claims, his

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complaint should not be dismissed with prejudice (id. at 21). The Court will address each

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of these objections in turn.

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the report and

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recommendation to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Arnold’s

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objections, the Court has engaged in a de novo review to determine whether to adopt

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Magistrate Judge Cobb’s recommendations.

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28 U.S.C. § 1915 provides that "the court shall dismiss the case at any time if the

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court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state

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a claim upon which relief may be granted; or (iii) seeks monetary relief against a

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Arnold additionally requests that the R&R be stricken from the record and Judge
Cobb be removed from this case and sanctioned. (ECF No. 10 at 9.)
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defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). This

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provision applies to all actions filed in forma pauperis, whether or not the plaintiff is

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incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)

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(“section 1915(e) applies to all in forma pauperis complaints, not just those filed by

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prisoners”); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must

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provide “a short and plain statement of the claim showing that the pleader is entitled to

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

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The Rule 8 notice pleading standard requires Plaintiff to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555

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(internal quotation marks and citation omitted). While Rule 8 does not require detailed

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factual allegations, it demands more than “labels and conclusions” or a “formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to rise

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above the speculative level.” Twombly, 550 U.S. at 555. When determining the

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sufficiency of a claim, “[w]e accept factual allegations in the complaint as true and

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construe the pleadings in the light most favorable to the non-moving party[; however, this

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tenet does not apply to] . . . legal conclusions . . . cast in the form of factual allegations.”

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Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation

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marks omitted).

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Mindful of the fact that the Supreme Court has “instructed the federal courts to

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liberally construe the ‘inartful pleading’ of pro se litigants,” Eldridge v. Block, 832 F.2d

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1132, 1137 (9th Cir. 1987), the Court will view Arnold’s pleadings with the appropriate

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degree of leniency.

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IV.

DISCUSSION

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The Court agrees with the R&R’s recommendation to dismiss Arnold’s amended

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complaint with prejudice, except with respect to his retaliation claim based on the

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Rehabilitation Act.

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A.

Authority of a Magistrate Judge

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As an initial matter, Arnold questions a magistrate judge’s authority to dismiss his

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complaint with leave to amend. Rather than challenge the Magistrate Judge’s order

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when it was issued, however, Arnold filed an amended complaint. In any event, the

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Magistrate Judge was acting within his authority. Dismissal with leave to amend is non-

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dispositive and therefore within the authority granted by 18 U.S.C. § 636. The order did

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not end Arnold’s suit, rather, it gave him the opportunity correct his complaint. The Ninth

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Circuit has recognized the distinction between non-dispositive dismissals and dispositive

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ones. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (“As to non-dispositive

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matters . . . a magistrate can, for example, dismiss a complaint with leave to amend

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without approval by the court.”).

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28 U.S.C. § 1915 allows a plaintiff to proceed with a lawsuit without paying a filing

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fee if the plaintiff is able to show that they are indigent. Courts are required to screen an

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in forma pauperis complaint to determine whether dismissal is appropriate under certain

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circumstances.3 See Lopez, 203 F.3d at 1126 (noting that the in forma pauperis statute

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at 28 U.S.C. § 1915(e)(2) requires a district court to dismiss an in forma pauperis

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complaint for the enumerated reasons). Section 1915(e)(B)(ii) directs courts to dismiss

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the case “at any time” if it determines that the plaintiff has failed to state a claim upon

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which relief may be granted. Though the word “prisoner” appears throughout § 1915, the

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requirement that a court dismiss a complaint which fails to state a claim applies to

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Arnold may be confused, understandably, because the Magistrate Judge used
the term “screening” in the R&R. The Magistrate Judge was acting under the authority of
28 U.S.C. § 636(b)(1)(A) and LR IB 1-4, which allows a magistrate judge to “file findings
and recommendations for disposition by the district judge.” In this district, reviews of in
forma pauperis complaints are referred to magistrate judges as a matter of course.
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prisoners as well as non-prisoners proceeding in forma pauperis. See id. at 1129 ; see

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also see also Calhoun, 254 F.3d 845.
The Magistrate Judge acted within his authority in screening Plaintiff’s complaint

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and amended complaint.

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B.

Bias

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Arnold asserts that Judge Cobb is biased because Arnold previously appeared

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before him and appealed a number of his rulings. (ECF No. 10 at 8, 20, 21.) In fact,

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Arnold goes on to request that Judge Cobb be removed from the case and sanctioned.

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(Id. at 10.)

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The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455

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is: “[W]hether a reasonable person with knowledge of all the facts would conclude that

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the judge's impartiality might reasonably be questioned.” United States v. Studley, 783

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F.2d 934, 939 (9th Cir.1986) (quotation omitted). Normally, the alleged bias must stem

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from an “extrajudicial source.” Liteky v. United States, 510 U.S. 540, 554-56, 114 S.Ct.

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1147, 1157, 127 L.Ed.2d 474 (1994). “[J]udicial rulings alone almost never constitute

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valid basis for a bias or partiality motion.” Id. “[O]pinions formed by the judge on the

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basis of facts introduced or events occurring in the course of the current proceedings, or

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of prior proceedings, do not constitute a basis for a bias or partiality motion unless they

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display a deep-seated favoritism or antagonism that would make fair judgment

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impossible.” Id.

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Arnold has not alleged any plausible basis for finding the Magistrate Judge was

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biased. The R&R explains its reasoning based on Arnold’s allegations and the applicable

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law. Arnold contends that the Court’s failure to direct service on defendants and

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schedule a hearing on his motion for preliminary injunction is evidence of bias.4

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However, this process applies in every case that involves an in forma pauperis

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Arnold has included preliminary injunctive relief as a remedy in his amended
complaint. He has not filed a separate motion for preliminary injunction. Moreover,
whether a hearing is set on such a motion is within the Court’s discretion.
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application. The court screens the complaint first and only directs service if the complaint

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states a claim. Indeed, the court may dismiss an action filed in forma pauperis before

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service of process if it is clear that the plaintiff cannot make out a claim. See, e.g.,

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Cooper v. Sumner, 672 F. Supp. 1361, 1364 (D. Nev. 1987). In sum, there is no support

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for Arnold’s claim that the Magistrate Judge’s conclusions were motivated by any bias.

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C.

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Arnold divides his amended complaint into three causes of action. (ECF No. 5 at

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8-17.) The three sections he identifies as causes, however, are not actually three legal

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bases for a civil claim. Cause 1 and Cause 2 identified several, sometimes overlapping,

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legal theories, and Cause 3 is a request for a preliminary injunction rather than a cause

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of action. For the purpose of clarity, the Court will address each of the legal theories he

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references in his amended complaint separately.

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Claims

1.

FTCA

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The R&R finds that Arnold has not stated a claim under the Federal Tort Claims

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Act (“FTCA”) because Arnold has not alleged that he exhausted administrative remedies,

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as required by the statute, and even if he did, the underlying conduct does not amount to

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a tort under Nevada law. (ECF No. 6 at 6.) Arnold variously characterizes being forced to

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leave his campsite as “criminal assault,” “terroristic threatening behavior,” “harassment,”

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and assault with a deadly weapon. (ECF No. 5 at 1, 14.) Even drawing every inference in

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his favor, none of these descriptions accurately characterize the interactions with federal

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officials that he alleges in his amended complaint.

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Arnold describes the R&R’s conclusion that he has not stated a cognizable tort

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under Nevada law “ridiculous” because “Nevada law is irrelevant” to his claims. (ECF

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No. 10 at 19.) The FTCA, however, applies to federal employees “if a private person,

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would be liable to the claimant in accordance with the law of the place where the act or

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omission occurred.” 28 U.S.C. § 1346(b)(1). In other words, the statute relies on state

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law definitions of torts. In the case of a tort that is alleged to have taken place in a

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national park, the law from the state in which the park sits governs. See Muchhala v.
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United States, 532 F. Supp. 2d 1215, 1226 (E.D. Cal. 2007) (“Here, even though the

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relevant events took place within the boundaries of Yosemite National Park . . .

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California tort law provides the applicable substantive law with respect to the underlying

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tort claim.”).

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The R&R applied the appropriate legal standard to Arnold’s FTCA claim and

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correctly concluded that his allegations do not amount to any cognizable tort under

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Nevada law.

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2.

Rehabilitation Act and ADA

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Arnold alleges that he filed a request to waive his 14-day camping limit in order to

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“stay longer so that he could get proper medical care.” (ECF No. 5 at 11.) Arnold also

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alleges that his disabilities made it difficult for him to leave his campsite on short notice.

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(Id.) Arnold asserts that his request was initially approved by officials, and he was given

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permission to stay while the request was considered further. (Id. at 11-12.) Two

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unnamed officers, who were aware of Arnold’s request, showed up a few days later and

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informed Arnold that he needed to leave immediately. (Id. at 12.) Elsewhere in the

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amended complaint, Arnold clarifies the contours of his claim: “note that the present

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Complaint is not addressing the issue of the Reasonable Accommodation request for

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Plaintiff’s disability, as that has not yet been decided on . . . but only Defendant’s actions

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related to Plaintiff’s filing of it and the temporary granting of it.” (Id. at 15.) In other words,

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Arnold appears to believe that he was retaliated against for filing a request to

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accommodate his disability.

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Arnold cannot state a claim under the Americans with Disabilities Act (“ADA”).

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Neither Title II (public services) nor Title III (public accommodations) of the ADA applies

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to an executive agency like the United States Forest Service. See 42 U.S.C. § 12131,

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1218; see also Isle Royale Boaters Ass'n v. Norton, 154 F. Supp. 2d 1098, 1135 (W.D.

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Mich. 2001) ("Plaintiffs may not sue NPS, a unit of the federal government, for

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discrimination under the ADA"), aff'd, 330 F.3d 777 (6th Cir. 2003); Sandison v. Michigan

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High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1036 (6th Cir. 1995) ("Place of public
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accommodation means a facility, operated by a private entity . . . Public school grounds

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and public parks are of course operated by public entities, and thus cannot constitute

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public accommodations under title III.").

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Section 504(a) of the Rehabilitation Act prohibits discrimination against qualified

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individuals with a disability “under any program or activity receiving Federal financial

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assistance or under any program or activity conducted by any Executive agency.” 29

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U.S.C. § 794(a). To state a claim under § 504 of the Rehabilitation Act, a plaintiff must

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show: “(1) he is an individual with a disability; (2) he is otherwise qualified to receive the

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benefit; (3) he was denied the benefits of the program solely by reason of his disability;

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and (4) the program receives federal financial assistance.” Weinreich v. Los Angeles

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Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (quotations omitted).

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The R&R concluded that Arnold’s allegations do not support a claim under the

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Rehabilitation Act — Arnold does not allege that he was forced to leave solely based on

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his disability, but rather due to a number of factors, including a simple misapplication of

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the appropriate time limit. (ECF No. 6 at 7.) The R&R is correct that the amended

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complaint does not clearly state a claim based on a failure to accommodate Arnold in

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violation of the Rehabilitation Act.

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The Rehabilitation Act, however, also prohibits retaliation against claimants for

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attempting to enforce its protections. Title 42 U.S.C. § 12203(a), which applies to the

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Rehabilitation Act by the terms of 29 U.S.C. § 791(g), provides that “[n]o person shall

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discriminate against any individual because such individual has opposed any act or

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practice made unlawful by this chapter.” Thus, an individual who opposes discrimination

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because of a disability by filing a complaint with the agency responsible for investigating

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such complaints engages in activity protected by the Rehabilitation Act. While this

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restriction comes up most often in the context of an employer and employee, a number

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of circuits have recognized that it also applies to public programs. See Alston v. D.C.,

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561 F. Supp. 2d 29, 40 (D.D.C. 2008) (collecting cases). To state a claim in these types

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of cases, a plaintiff must allege 1) that she engaged in protected activity, 2) she was
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subjected to an adverse action by the defendant, and 3) there is a casual connection

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between. Id (noting that the standard is the same for the ADA and the Rehabilitation

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Act).

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The amended complaint addresses these factors indirectly and in conclusory

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manner. As currently written, it does not meet Rule 8’s requirements of clarity and

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conciseness. However, it is not clear from the face of the amended complaint that Arnold

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will not be able to amend it to present a “short and plain statement” of a claim based on

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retaliation in violation of the Rehabilitation Act. Therefore, the Court disagrees with the

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R&R on this limited ground and finds that this claim should be dismissed without

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prejudice and Arnold be granted leave to amend.
3.

18 U.S.C. § 241

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As the R&R correctly noted, 18 U.S.C. §241 is a criminal statute and does not

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create a private right of action. See Allen v. Gold Country Casino, 464 F.3d 1044, 1048

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(9th Cir. 2006).

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4.

Equal Protection

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In order to allege a violation of the Equal Protection Clause, a plaintiff must allege

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that he or she was treated differently than similarly situated persons. See, e.g.,Okwu v.

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McKim, 682 F.3d 841, 846 (9th Cir. 2012). Arnold argues “[j]ust because others in the

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same situation have been treated the same way as plaintiff, does not make it right and

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just and acceptable and unactionable.” (ECF No. 10 at 24.) This simply misstates the

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standard for an Equal Protection claim.

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The Court agrees with the R&R that Arnold has not alleged any such facts and
has failed to state a claim.
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Due Process

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The R&R finds that Arnold has not pled a cognizable due process claim because,

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among other things, he has not alleged the loss of liberty or property. Arnold does not

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dispute the ability of national parks to regulate camping. Rather, he alleges that officers

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incorrectly applied regulations to him. But, as the R&R correctly noted, the
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misapplication did not deprive Arnold of any liberty or property interest. The Court’s

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independent research found no authority which supports the conclusion that a person

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has a constitutionally protected property right of access to a specific campsite within a

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national park. Therefore, the Court agrees with the R&R that Arnold has not identified a

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cognizable due process claim.

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6.

Fourth Amendment

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Arnold has not alleged any search or seizure took place. He alleges that officers

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threatened to arrest him and seize his belongings if he did not leave his campsite.

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However, threats alone cannot support a Fourth Amendment claim. See Thacker v. City

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of Columbus, 328 F.3d 244, 258 (6th Cir. 2003).

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D.

Additional Arguments

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Arnold makes a number of additional arguments and refers, in passing, to a

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number of additional legal theories. The Court has reviewed these arguments and

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determines that they do not warrant discussion as they do not affect the outcome of this

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order.

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E.

Dismissal with or without prejudice

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A dismissal should not be without leave to amend unless it is clear from the face

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of the complaint that the action is frivolous and could not be amended to state a federal

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claim, or the district court lacks subject matter jurisdiction over the action. See Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir.1995) (dismissed as frivolous); O'Loughlin v.

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Doe, 920 F.2d 614, 616 (9th Cir.1990). Here, it is not clear from the face of the amended

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complaint that Arnold would be unable to amend his complaint to state a cognizable

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retaliation claim in violation of the Rehabilitation Act. While the Court agrees with the

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Magistrate Judge that Arnold has been given an opportunity to amend his complaint but

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has failed to assert cognizable claims, the Court will give Arnold another opportunity to

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amend his complaint. Therefore, Arnold’s claim based on a retaliation theory under the

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Rehabilitation Act is dismissed without prejudice and he is granted leave to amend his

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complaint, if he so choses, to present a short and plain description of this claim. If Arnold
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chooses to file an amended complaint he is advised that an amended complaint

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supersedes the original complaint and, thus, the amended complaint must be complete

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in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546

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(9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is

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irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa

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Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with

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prejudice, a plaintiff is not required to reallege such claims in a subsequent amended

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complaint to preserve them for appeal).
All other claims are dismissed with prejudice.

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V.

CONCLUSION
It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted in part.

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Arnold’s amended complaint (ECF. No. 5) is dismissed without prejudice in

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regards to his retaliation claim based on the Rehabilitation Act. It is dismissed with

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prejudice in all other respects.

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Arnold may file an amended complaint to allege a claim for retaliation under the

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Rehabilitation Act within thirty (30) days. Failure to file an amended complaint will result

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in dismissal with prejudice.

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Arnold includes several “motions” in his objections. (ECF No. 10.) These

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“motions” must be separately filed. In any event, they are denied as moot in light of the

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Court’s dismissal of Arnold’s claims.

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DATED THIS 13th day of June 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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