Orr v. City of Reno et al

Filing 10

ORDER REGARDING REPORT AND RECOMMENDATIONS ECF No. 6 is accepted and adopted in full; allowing specific claims to either proceed, or be dismissed with or without prejudice; Clerk directed to send Plaintiff sufficient copies of the Amended C omplaint ECF No. 5 and USM-285 for each defendant (5 copies of of 5 Amended Complaint/USM-285 mailed to P 11/08/2016); Plaintiff given 20 days in which to furnish U.S. Marshal with required form USM-285/amended complaint for each defendant; U.S. Marshal will then proceed with service of the summons/amended complaint on each defendant; 20 days after receiving USM-285 from U.S. Marshal showing whether service has been accomplished, Plaintiff must file a notice with the Court identifying which defendants were/were not served; Plaintiff must serve defendants and/or defendants counsel copies of all pleadings and include certificate of service; Plaintiffs Motion for Appointment of Counsel is referred to Magistrate Judge Cobb for determination. See order for further details and instructions. Signed by Judge Miranda M. Du on 11/08/2016. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

BRANDON J. ORR,
Plaintiff,

10
11

Case No. 3:16-cv-00122-MMD-WGC
ORDER

v.
THE CITY OF RENO, et.al.,

12

Defendants.

13
14

I.

SUMMARY

15

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

16

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

17

(ECF No. 5). The Court has reviewed Plaintiff’s Objection (“Objection”) (ECF No. 7) and

18

Plaintiff’s Motion for Appointment of Counsel (“Motion”) (ECF No. 8.) The Court accepts

19

and adopts the R&R in its entirety and refers the Motion to the Magistrate Judge for

20

determination.

21

II.

BACKGROUND

22

Plaintiff, an inmate at Washoe County Detention Center (“WCDC”), is proceeding

23

pro se in this action brought pursuant to 42 U.S.C. ' 1983. Plaintiff filed an application to

24

proceed in forma pauperis and the Court permitted him to proceed on claims under the

25

Fourth Amendment’s unlawful search and seizure clause and the Fourteenth

26

Amendment’s due process clause. (ECF No. 3 at 10.) The Court gave Plaintiff leave to

27

amend his complaint to amend his equal protection claims as well as his claims against

28

the City of Reno (“the City”). (Id.) Plaintiff filed his First Amended Complaint (“FAC”) on

1

April 1, 2016. (ECF No. 5.) After review of the FAC, the Magistrate Judge found that

2

Plaintiff had failed to adequately amend his complaint to state facts alleging colorable

3

equal protection claims or colorable claims against the City of Reno. The Magistrate

4

Judge recommends dismissing Plaintiff’s equal protection claims with prejudice for

5

Plaintiff’s failure to cure the deficiencies identified in the Order granting him leave to

6

amend. The Magistrate Judge further recommends dismissing the claims against the

7

City without prejudice to give Plaintiff the opportunity to seek leave to amend at a later

8

time. In response, the Plaintiff filed an Objection (ECF No. 7), asking that he be

9

appointed counsel as he is “illiterate” and does not understand legal terminology (id. at

10

1). Plaintiff filed a Motion (ECF No. 8) in support of his Objection requesting that the

11

Court appoint counsel for him (id. at 4). The Court accepts and adopts the R&R in its

12

entirety and refers the Motion to Magistrate Judge Cobb for consideration.

13

III.

LEGAL STANDARD

14

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

15

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

16

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

17

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

18

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

19

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

20

Magistrate Judge Cobb’s recommendation. Where a party fails to object, however, the

21

court is not required to conduct “any review at all . . . of any issue that is not the subject

22

of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has

23

recognized that a district court is not required to review a magistrate judge’s report and

24

recommendation where no objections have been filed. See United States v. Reyna-

25

Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by

26

the district court when reviewing a report and recommendation to which no objections

27

were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)

28

(reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that district
2

1

courts are not required to review “any issue that is not the subject of an objection.”).

2

Thus, if there is no objection to a magistrate judge’s recommendation, then the court

3

may accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d

4

at 1226 (accepting, without review, a magistrate judge’s recommendation to which no

5

objection was filed).

6

IV.

DISCUSSION

7

A.

Equal Protection Claims

8

The Fourteenth Amendment prohibits the denial of “the equal protection of the

9

laws.” U.S. Const. amend XIV, § 1. It “commands that no State shall deny to any person

10

within its jurisdiction the equal protection of the laws, which is essentially a direction that

11

all persons similarly situated should be treated alike.” Lee v. City of Los Angeles, 250

12

F.3d 668, 686 (9th Cir. 2001) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S.

13

432, 439 (1985)). “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal

14

Protection Clause of the Fourteenth Amendment a plaintiff must show that the

15

defendants acted with an intent or purpose to discriminate against the plaintiff based

16

upon membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686

17

(9th Cir. 2001). Alternatively, an equal protection claim may be brought by a “class of

18

one,” where a plaintiff alleges he has been intentionally treated differently from others

19

similarly situated. Village of Willowbrook v. Olech, 528 U.S. 562, 563.

20

In Count I of the FAC, Plaintiff asserts in part a violation of his rights under the

21

equal protection clause. (ECF No. 5 at 3-4.) Pertinent to the equal protection analysis,

22

Plaintiff alleges that two Reno police officers previously harassed, intimidated, and lied to

23

Plaintiff on the basis that Plaintiff, because of his race, was a gang member. (Id.) In the

24

initial complaint, the Magistrate Judge found that Plaintiff failed to state a factual

25

scenario that implicated the equal protection clause but that Plaintiff should be given an

26

opportunity to amend. (ECF No. 3 at 6.) However, the factual allegations of Count I in the

27

FAC are insufficient to show that the officers acted with an intent or purpose to

28

discriminate against Plaintiff because of his membership in a protected class, which is
3

1

required to state a colorable claim under the equal protection clause. The Court

2

therefore concurs in the Magistrate Judge’s recommendation that Plaintiff’s equal

3

protection claim under Count I be dismissed with prejudice.

4

In Count II of the FAC, Plaintiff alleges that upon his arrest, defendant police

5

officers “stole” Plaintiff’s personal property out of his girlfriend’s apartment, taking a

6

variety of items without due process of law. (ECF No. 5 at 5.) The Magistrate Judge gave

7

Plaintiff an opportunity to include additional facts in the FAC in order to state a colorable

8

claim under the equal protection clause, but Plaintiff failed to do so. (ECF No. 3 at 8, 6 at

9

6.) The Court therefor concurs with the recommendation that the equal protection claim

10

under Count II be dismissed with prejudice.

11

In Count III of the Complaint, Plaintiff alleges that defendant police officers placed

12

“hyperbolic” needles, shot gun shells, and weapons in his girlfriend’s apartment to make

13

the house appear like a drug house. (ECF No. 5 at 6.) He also claims that defendant

14

police officers damaged his girlfriend’s apartment by tearing up rooms, kicking holes in

15

doors, emptying trash on the floors, breaking racks, turning on the upstairs bathroom to

16

flood the residence, and dumping cat litter around the apartment. (Id.) The Magistrate

17

Judge gave Plaintiff an opportunity to amend Count III to provide additional factual

18

allegations to state a colorable claim under the equal protection clause. (ECF No. 3 at 9.)

19

In the FAC, Plaintiff adds allegations that the City of Reno is responsible for training their

20

officers to racially profile individuals. (ECF No. 5 at 6-7.) However, this additional factual

21

allegation is insufficient to state a colorable claim under the equal protection clause.

22

Thus, the Court concurs with the recommendation to dismiss the equal protection claim

23

in Count III with prejudice.

24

B.

Claims Against the City of Reno

25

In his Order, Magistrate Judge Cobb advised Plaintiff that in order to maintain a

26

claim against the City of Reno, he needed to allege that there was a municipal policy or

27

custom that caused Plaintiff’s injuries. (ECF No. 3 at 9.) In his FAC, Plaintiff included two

28

attempts to meet the Magistrate Judge’s instruction by stating that the City of Reno is
4

1

responsible for not training its officers properly and for training its officers to racially

2

profile individuals. (ECF No. 5 at 4, 7.) This conclusory allegation alone, however, is

3

insufficient to show that the City had a policy or custom that caused Plaintiff’s injuries.

4

The Magistrate Judge recommends dismissing Plaintiff’s claims without prejudice to give

5

Plaintiff the opportunity to seek leave to amend to allege facts showing that the City’s

6

conduct amounted to deliberate indifference. (ECF No. 6 at 8.) The Court accepts this

7

recommendation, dismissing Plaintiff’s claims against the City of Reno without prejudice

8

and with leave to file a motion to amend in order to assert these claims against the City

9

by the deadline to amend.

10

C.

Motion for Appointment of Counsel

11

Generally, there is no constitutional right to counsel in a civil case. See Lassiter v.

12

Dep’t of Soc. Servs., 452 U.S. 18, 25-27 (1981). However, a court may request counsel

13

to represent indigent civil litigants in exceptional circumstances. Terrell v. Brewer, 935

14

F.2d 1015, 1017 (9th Cir. 1991); 28 U.S.C. § 1915(e)(1). “A finding of exceptional

15

circumstances requires an evaluation of both the likelihood of success on the merits and

16

the petitioner’s ability to articulate his claims pro se in light of the complexity of the legal

17

issues that are involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)

18

(citing Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (quotations omitted)). The

19

Court must view these two factors together and not distinctly before reaching a decision.

20

Id.

21

In his Objection, Plaintiff states that he is illiterate. (ECF No. 7 at 1.) On further

22

inspection, the Court notes that Plaintiff’s Objection, Motion, and Notice of Updated

23

Address (ECF No. 9) all appear to be written by the same person. The Court is

24

concerned that Plaintiff is in fact unable to write his own filings and is utilizing the aid of

25

another individual to write and file these documents. For that reason, the Court refers

26

Plaintiff’s Motion to the Magistrate Judge to determine if Plaintiff’s circumstances meet

27

the “exceptional circumstances” test such that Plaintiff requires the aid of counsel to

28

proceed on his claims.
5

1
2

V.

CONCLUSION
It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

3

Recommendation of Magistrate Judge William G. Cobb (ECF No. 6) is accepted and

4

adopted in full. The following claims may proceed:

5
6
7
8
9
10
11
12

(a) The Fourth Amendment unlawful detention and arrest claim against Vogt,
Caprioli, Schaur, and Atkinson in Count I;
(b) The due process claim against Vogt, Caprioli, Schaur, Carter, Wilson and
Atkinson in Count II;
(c) The Fourth Amendment claim for unlawful search and seizure against Vogt,
Caprioli, Schaur, Carter Wilson and Atkinson in Count II;
(d) The Fourth Amendment claim and due process claims against Carter in Count
III related to the allegation that Carter took $100 from the residence;

13

(e) The Fourth Amendment claim against Wilson, Schaur, Caprioli, Atkinson and

14

Carter in Count III related to the allegations that they inflicted damage to the

15

residence during the search; and

16

(f) The due process claim against Wilson, Schaur, Caprioli, Atkinson and Carter

17

in Count III related to the alleged falsification of evidence in the residence.

18

The equal protection claims in Counts I-III are dismissed with prejudice. The City

19

of Reno is dismissed without prejudice, and Plaintiff may file a motion for leave to amend

20

within the deadlines of the scheduling order once it is issue if he believes he can allege

21

sufficient facts to state claims against the City.

22

The Clerk is directed to send Plaintiff sufficient copies of the Amended Complaint

23

and service of process forms (USM-285) for each defendant. Plaintiff will be given twenty

24

(20) days in which to furnish the U.S. Marshal with the required form USM-285 for each

25

defendant. The U.S. Marshal will then proceed with service of the summons and

26

Amended Complaint on each defendant. Within twenty (20) days after receiving from the

27

U.S. Marshal a copy of the USM-285 form showing whether service has been

28

accomplished, Plaintiff must file a notice with the Court identifying which defendants
6

1

were served and which were not served, if any. If Plaintiff wishes to have service again

2

attempted on any unserved defendant, then a motion must be filed with the Court

3

identifying the unserved defendant(s) and specifying a more detailed name and/or

4

address for said defendant, or whether some other manner of service should be

5

attempted. Plaintiff is reminded that pursuant to Rule 4(m) of the Federal Rules of Civil

6

Procedure, service must be accomplished within ninety (90) days of the date of any order

7

adopting and accepting this Report and Recommendation.

8

Plaintiff is advised that from now on, he must serve upon defendants or, if

9

appearance has been entered by counsel, upon the attorney(s), a copy of every

10

pleading, motion or other document submitted for consideration by the court. Plaintiff

11

must include with the original paper to be filed with the Court a certificate stating the date

12

that a true and correct copy of the document was mailed to the defendants or counsel for

13

defendants. The Court may disregard any paper received by a District Judge or a

14

Magistrate Judge which has not been filed with the Clerk, and any paper received by a

15

District Judge, Magistrate Judge or Clerk which fails to include a certificate of service.

16

It is further ordered that Plaintiff’s Motion for Appointment of Counsel (ECF No. 8)

17

is referred to Magistrate Judge Cobb for determination.

18

DATED THIS 8th day of November 2016.

19
20

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28
7