Abram v. City of Reno et al

Filing 5

ORDER accepting and adopting 3 Report and Recommendation; granting 1 Motion/Application for Leave to Proceed in forma pauperis; directing clerk to file complaint; dismissing complaint; and directing clerk to close case. Signed by Judge Miranda M. Du on 10/6/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GLEN M. ABRAM,
Plaintiff,

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Case No. 3:15-cv-00029-MMD-WGC

v.
CITY OF RENO, et al.,

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

Defendants.

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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 (dkt. no. 3) (“R&R”) relating to Plaintiff’s Application to Proceed

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In Forma Pauperis (dkt. no. 1) and complaint (dkt. no. 1-1). The Court has reviewed

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Plaintiff’s objection (dkt. no. 4). For the reasons discussed below, the Court accepts and

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adopts the R&R.

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II.

BACKGROUND

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Glen Abram (“Abram”) alleges that a series of events stemming from a June 2008

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shoplifting arrest and subsequent prosecution violated his constitutional rights. He filed a

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complaint pursuant to 42 U.S.C. § 1983 asserting violations of the Fourth, Fifth, Sixth

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Seventh, Ninth, and Thirteenth Amendments.

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The Magistrate Judge granted Abram’s application to proceed in forma pauperis

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and evaluated Abram’s complaint, as required for any party proceeding in forma

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pauperis under 28 U.S.C. § 1915. The R&R recommends that Abram’s complaint be

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dismissed with prejudice on all but part of Abram’s malicious prosecution claim, which

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should be dismissed without prejudice.

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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 Abram’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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Dismissal of a complaint for failure to state a claim upon which relief may be

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granted is provided for in Federal Rule of Civil Procedure 12(b)(6). Under this standard,

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the Court must determine “whether the complaint’s factual allegations, together with all

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reasonable inferences, state a plausible claim for relief.” Cafasso, U.S. ex rel. v. Gen.

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Dynamics C4 Sys., 637 F.3d 1047, 1054 (9th Cir.2011) (citing Ashcroft v. Iqbal, 556 U.S.

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662, 678-79 (2009)). “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 556 (2007)).

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When determining the sufficiency of a claim, “[w]e accept factual allegations in the

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complaint as true and construe the pleadings in the light most favorable to the non-

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moving party [however, this tenet does not apply to] . . . legal conclusions . . . cast in the

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form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011)

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(citation and internal quotation marks omitted). “Therefore, conclusory allegations of law

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and unwarranted inferences are insufficient to defeat a motion to dismiss.” Id. (citation

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and internal quotation marks omitted); see also Iqbal, 556 U.S. at 678 (quoting Twombly,

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550 U.S. at 555) (“A pleading that offers ‘labels and conclusions’ or ‘a formulaic

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recitation of the elements of a cause of action will not do.’”).
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A complaint must contain either direct or inferential allegations concerning “all the

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material elements necessary to sustain recovery under some viable legal theory.”

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Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

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1106 (7th Cir. 1989) (emphasis in original)). Mindful of the fact that the Supreme Court

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has “instructed the federal courts to liberally construe the ‘inartful pleading’

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of pro se litigants,” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), the Court will

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view Plaintiff’s pleadings with the appropriate degree of leniency.

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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).

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IV.

DISCUSSION

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The Court agrees with the Magistrate Judge’s recommendation to dismiss

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Abram’s complaint with prejudice in part and without prejudice in part. Abram objects to

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the 14-day period for responding to the R&R, the finding that his ineffective assistance of

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counsel claim was improper, the finding that the statute of limitations has run for his false

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imprisonment claim, and the finding that he could not state a claim for malicious

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prosecution. The Court addresses each objection in turn.

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A.

14-Day Response Period

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Though he complied with it, Abram objects to the 14-day period for responding to

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the R&R. While Plaintiff is proceeding pro se, he nevertheless must comply with the

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applicable procedural rules. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per

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curiam).

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Abram also asks the Court to appoint counsel on his behalf. Generally, a person

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has no right to counsel in civil actions. See Storseth v. Spellman, 654 F.2d 1349, 1353

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(9th Cir. 1981). However, the Court is able to request an attorney for a plaintiff

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proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). The Court requests counsel in
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exceptional circumstances. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). In

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order to determine whether exceptional circumstances exist, the Court must consider

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“‘the likelihood of success on the merits’” as well as the ability of the plaintiff to articulate

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his arguments “‘in light of the complexity of the legal issues involved.’” Palmer v. Valdez,

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560 F.3d 965, 970 (9th Cir. 2009) (citation omitted). Neither of these considerations is

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dispositive and the Court must examine them together. Id. (citing Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986). Other factors recognized by Circuit Courts that may

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be considered include “the litigant's ability to investigate the facts of the case, the

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likelihood of conflicting testimony requiring skilled cross-examination, the litigant's ability

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to adequately present the case, and the complexity of the legal and factual issues

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involved.” U.S. v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State

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of Wash., 795 F.2d 796, 800 n.8 (9th Cir. 1986) (citing Childs v. Duckworth, 705 F.2d

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915, 922 (7th Cir.1983); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982)).

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The Court finds, for the reasons discussed below, that Abram’s claims are

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procedurally barred, and the appointment of counsel would do nothing to help the

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likelihood of Abram’s success on the merits of his case. Consequently his request for

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counsel is denied.

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B.

Ineffective Assistance of Counsel

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Abram simply claims that he was “misrepresented by my trial attorney” and that

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his “[r]ight to competent legal representation” was violated. (Dkt. no 1-1 at 3, 6.) He lists

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Roberto Puentes, presumably his appointed counsel, as a defendant. The R&R

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understood Abram’s pleading as an ineffective assistance of counsel claim, and

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recommends that the Court find the claim to be improper under § 1983. The Court

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agrees.

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A public defender is typically not a state actor for the purposes of § 1983. Miranda

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v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003) (citing Polk County v. Dodson, 454,

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U.S. 312 (1981)). Abram previously attempted to bring such a claim through a petition for

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habeas corpus, but his petition was dismissed. (Dkt. no. 3 at 7.) The R&R correctly found

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that Abram could not seek the same relief by another name in this case.

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C.

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In evaluating Abram’s false imprisonment and false arrest claims, the Magistrate

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Judge took judicial notice that the date of Abram’s arrest was March 24, 2010. (Dkt. no.

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3 at 6.) The R&R also correctly noted that § 1983 claims rely on the statute of limitations

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for personal injury claims in the forum state, and further noted that Nevada has a two

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year statute of limitations for such claims. (Id. at 5.) Hence, the Magistrate Judge

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correctly determined that Abram’s false imprisonment and false arrest claims were

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False Imprisonment & False Arrest Claims

barred by the two year statute of limitations.

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Abram objects because he claims that he currently has an outstanding arrest

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warrant in Washoe County related to this matter. Because of this, he argues, the clock

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for the statute of limitations has not started yet. (Dkt. no. 4 at 2.)

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The existence of an arrest warrant is not an arrest for purposes of the Nevada tort

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of false arrest. A plaintiff needs to actually be “restrained” or “confined.” Hernandez v.

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City of Reno, 634 P.2d 668, 671 (Nev. 1981) (quoting Marschall v. City of Carson, 464

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P.2d 494 (Nev. 1970) and the Restatement (Second) of Torts (1965)). Similarly, a

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seizure under the Fourth Amendment typically requires the restriction of movement. See

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United States v. Smith, 633 F.3d 889, 892-93 (9th Cir. 2011). Therefore, the existence of

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an arrest warrant does not cure the deficiencies in Abram’s Fourth Amendment and false

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imprisonment claims.

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D.

Malicious Prosecution

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The R&R recommends dismissal of Abram’s malicious prosecution claim because

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he failed to allege that the criminal proceedings against him had been terminated in his

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favor. (Dkt. no. 3 at 7.) The R&R further clarified that any malicious prosecution claim

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brought against the prosecuting attorney in connection with Abram’s trial would be

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dismissed with prejudice, because the prosecuting attorney was protected by absolute

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immunity. (Id.)
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Abram objects to the dismissal with prejudice of his malicious prosecution claim

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against the prosecutorial defendants. He argues the prosecutors acted outside the

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scope of their judicial function when they “prosecuted [Abram] knowing false testimony

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was given, withheld exculpatory evidence,” and denied him a jury trial by charging him

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with a misdemeanor rather than a felony. (Dkt. no. 4 at 2.)

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In Van de Kamp v. Goldstein, the Supreme Court discussed both the history and

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the contours of prosecutorial immunity. 555 U.S. 335 (2009). As the Court noted,

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prosecutors have long been immune from liability based on their decision to initiate a

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prosecution. Id. at 341. Prosecutors may not have immunity when they are acting in

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administrative or investigative, rather than prosecutorial tasks. Id. at 342-43. The

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behavior that Abram alleges, however, falls within the prosecutorial role and is clearly

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covered by prosecutorial immunity. The R&R is correct in recommending dismissal of the

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malicious prosecution claim against any prosecutorial defendants with prejudice.

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V.

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CONCLUSION
It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (dkt. no. 3) be accepted and

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adopted in whole. Abram’s Application to Proceed In Forma Pauperis (dkt no. 1) is

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granted. The Clerk is directed to file Abram’s complaint (dkt. 1-1). The complaint is

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dismissed. Plaintiff’s malicious prosecution claim against non-prosecutorial defendants is

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dismissed without prejudice. All other claims are dismissed with prejudice. The Clerk is

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directed to close this case.

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DATED THIS 6th day of October 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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