Sams v. Bader et al

Filing 26

ORDER that the motion to dismiss (ECF No. 11 ) is GRANTED; the motion for entry of default (ECF No. 14 ) and motion for default judgment (ECF No. 16 ) are DENIED. Signed by Judge Robert C. Jones on 4/24/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD J. SAMS,

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Plaintiff,

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3:17-cv-00255-RCJ-VPC

vs.
ORDER

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SCOTT BADER et al.,

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Defendants.

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This is a prisoner civil rights case. Now pending before the Court is a motion to dismiss,

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(Mot. Dismiss, ECF No. 11), a motion for entry of default, (ECF No. 14), and a motion for

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default judgment, (ECF No. 16). For the reasons given herein, the Court grants the motion to

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dismiss and denies the other motions.

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I.

FACTS AND PROCEDURAL HISTORY
On January 4, 2017, Plaintiff Richard Sams (also known as Charles K. Tenborg) was

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arrested at Rail City Casino by Sparks Police Department (“SPD”) Officer Scott Bader for

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burglary, uttering a forged instrument, and possession of a forged instrument. (Compl. 4, ECF

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No. 8; Police Report, ECF No. 8 at 11.) At the time of his arrest, Mr. Sams alleges he was in

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possession of $3,405 in cash. The money was seized by SPD, but was not counted in Mr. Sams’

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presence. Officer Bader’s declaration of probable cause states that a search incident to arrest

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showed Mr. Sams was carrying “approximately $3,000.” Following his arrest, $1,405 was placed

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in Mr. Sams’ inmate account at the Washoe County Detention Center. In this lawsuit, Mr. Sams

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alleges that Officer Bader and/or some other unidentified SPD employee improperly withheld the

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additional $2,000, in violation of his rights under the Fourth, Fifth, and Fourteenth Amendments

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to the United States Constitution.
Officer Bader and SPD have moved to dismiss the Complaint under Federal Rule of Civil

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Procedure 12(b)(6). (Mot. Dismiss, ECF No. 11.) Mr. Sams has moved for entry of default and

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default judgment on the basis of Defendants’ alleged failure to file a timely response to the

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Complaint. (Mot. Entry Default, ECF No. 14; Mot. Default J., ECF No. 16.)

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II.

LEGAL STANDARDS

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47

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(1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

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that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

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12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578,

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581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to

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state a claim, dismissal is appropriate only when the complaint does not give the defendant fair

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notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a

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claim, the court will take all material allegations as true and construe them in the light most

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favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The

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court, however, is not required to accept as true allegations that are merely conclusory,

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unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a

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plaintiff must plead facts pertaining to his own case making a violation “plausible,” not just

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“possible.” Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009) (citing Twombly, 550 U.S. at 556)

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(“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.”). That is,

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under the modern interpretation of Rule 8(a), a plaintiff must not only specify or imply a

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cognizable cause of action (Conley review), but also must allege the facts of his case so that the

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court can determine whether the plaintiff has any basis for relief under the cause of action he has

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specified or implied, assuming the facts are as he alleges (Twombly-Iqbal review).
“Generally, a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents whose

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contents are alleged in a complaint and whose authenticity no party questions, but which are not

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physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to

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dismiss” without converting the motion to dismiss into a motion for summary judgment. Branch

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v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a

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court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distribs., Inc.,

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798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside

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of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See

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Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

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III.

ANALYSIS
a. Plaintiff’s Motions for Entry of Default and Default Judgment
The Court will deny these motions because they are based on Mr. Sams’ miscalculation

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of the deadline for Defendants’ responsive pleading. Mr. Sams alleges that Defendants were

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served with the Complaint on January 19, 2018, and did not file their motion to dismiss until

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February 12, 2018, more than twenty-one days later. See Fed. R. Civ. P. 12(a)(1)(A)(i)

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(providing that a defendant must serve an answer or other responsive pleading “within 21 days

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after being served with the summons and complaint”). However, the U.S. Marshals’ process

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return, on file with the Court, clearly shows that the date of service for both Defendants was

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January 23, 2018. (ECF No. 10.) The responsive pleading was thus timely, and there is no basis

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for an entry of default.

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b. Motion to Dismiss
i. Plaintiff’s Claims Against SPD
This Court has previously held that Nevada law prohibits lawsuits against municipal

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police departments. See Ward v. Nevada, No. 3:09-cv-7-RCJ-VPC, 2010 WL 1633461, at *3 (D.

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Nev. Feb. 26, 2010), report and recommendation adopted, No. 3:09-cv-7-RCJ-VPC, 2010 WL

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1640427 (D. Nev. Apr. 21, 2010), aff’d sub nom. Ward v. Waldron, 474 F. App’x 598 (9th Cir.

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2012); Jackson v. Scarpati, No. 3:14-cv-415-RCJ, 2015 WL 5092696, at *5 (D. Nev. Aug. 27,

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2015); see also Morgan v. City of Henderson Det. Ctr., No. 2:09-cv-1392-GMN, 2011 WL

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1626560, at *3 (D. Nev. Apr. 27, 2011). Under Federal Rule of Civil Procedure 17(b), state law

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determines whether a municipal department may sue or be sued. See Streit v. County of Los

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Angeles, 236 F.3d 552, 565 (9th Cir. 2001). In Nevada, “[i]n the absence of statutory

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authorization, a department of the municipal government may not, in the department name, sue

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or be sued.” Wayment v. Holmes, 112 Nev. 232, 912 P.2d 816, 819 (Nev. 1996); Schneider v.

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Elko County Sheriff's Dep’t, 17 F. Supp. 2d 1162, 1165 (D. Nev. 1998) (finding that an action

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against the Elko County Sheriff’s Department was frivolous for lack of capacity to be sued).

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Therefore, the claims against SPD must be dismissed with prejudice.
ii. Plaintiff’s Claim of Due Process Violations

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Mr. Sams has failed to allege a violation of his right to due process under the Fifth and

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Fourteenth Amendments. “[W]hen seizing property for criminal investigatory purposes,

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compliance with the Fourth Amendment satisfies pre-deprivation procedural due process.”

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Sanders v. City of San Diego, 93 F.3d 1423, 1429 (9th Cir. 1996). Therefore, when property is

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seized incident to a lawful arrest, in compliance with the Fourth Amendment, there is no pre-

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deprivation violation of due process. Here, Mr. Sams does not allege that Officer Bader lacked

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probable cause to arrest him, nor that the initial seizure of his money was wrongful. Accordingly,

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Mr. Sams has not alleged a pre-deprivation due process violation, and the inquiry turns to

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whether adequate post-deprivation procedures are available to him. See id. at 1433.
As this Court has previously observed, Nevada law provides an adequate remedy, in NRS

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179.085, for the return of unlawfully seized or retained property both in pending criminal

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proceedings and via separate civil actions. See Wise v. Schreiber, No. 3:15-cv-462-RCJ-VPC,

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2017 WL 662981, at *2 (D. Nev. Feb. 17, 2017), appeal dismissed, No. 17-15644, 2017 WL

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4844271 (9th Cir. June 28, 2017). Mr. Sams has been on notice of the seizure of his property

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since the time of his booking, and has not yet pursued the state-law remedies available to him.

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See City of W. Corvina v. Perkins, 525 U.S. 234, 240 (1999) (holding that, where a person is on

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notice that his property was seized, due process does not require law enforcement to provide

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“notice of state-law remedies which . . . are established by published, generally available state

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statutes and case law”). The due process claim must therefore be dismissed.

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iii. Plaintiff’s Claim Under the Takings Clause
Next, Plaintiff alleges the seizure of his money amounts to an uncompensated taking for

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public use, in violation of the Fifth Amendment’s Takings Clause. “The Takings Clause of the

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Fifth Amendment prohibits the government from taking private property for public use without

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just compensation.” Ward v. Ryan, 623 F.3d 807, 810 (9th Cir. 2010). However, “[w]hen the

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government seizes property in the exercise of its police powers, the Takings Clause does not

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apply.” Prepaid Teleconnect, Inc. v. City of Murrieta, No. EDCV 15-2062-VAP-KKX, 2016 WL

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1622609, at *8 (C.D. Cal. Apr. 21, 2016); see also Mateos-Sandoval v. Cty. of Sonoma, 942 F.

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Supp. 2d 890, 912 (N.D. Cal. 2013) (holding that, even where a police seizure of property is

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unlawful, such seizure “does not constitute a ‘public use’”).
Accordingly, Mr. Sams’ claim under the Takings Clause is dismissed with prejudice.
iv. Plaintiff’s Claim of Unreasonable Search and Seizure

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Lastly, Mr. Sams alleges he was subject to an unreasonable seizure in violation of the

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Fourth Amendment. As noted above, Mr. Sams has alleged no facts to suggest that either his

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arrest or the initial seizure of his money was unlawful. Thus, there can be no Fourth Amendment

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violation for the seizure of Mr. Sams’ property because it was concededly done in a search

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incident to lawful arrest. See, e.g., United States v. Robinson, 414 U.S. 218, 235 (1973) (“A

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custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth

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Amendment.”); United States v. Edwards, 415 U.S. 800, 803 (1974) (“It is also plain that

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searches and seizures that could be made on the spot at the time of arrest may legally be

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conducted later when the accused arrives at the place of detention.”). Furthermore, to the extent

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Mr. Sams claims that the retention of some of his money amounted to another seizure which

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violated the Fourth Amendment, there simply is no constitutional right to have all the money on

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one’s person at the time of arrest deposited into one’s inmate account. Therefore, Mr. Sams has

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failed to state a claim under the Fourth Amendment, and the claim is dismissed.
c. Officer Bader’s Personal Participation in the Claimed Violations

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The Court also notes Mr. Sams has failed to make adequate allegations of Officer Bader’s

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personal participation in any of the allegedly unlawful activity. In order to state a § 1983 claim,

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“a plaintiff must plead that each Government-official defendant, through the official’s own

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individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.

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Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009). Mr. Sams does not allege that Officer Bader took his

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money or caused the money not to be deposited into his inmate account. He alleges only that

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Officer Bader initially seized the money, and then completed a declaration of probable cause

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stating that the amount of seized currency was “approximately $3,000.” In reality, Mr. Sams

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merely claims that the money “disappeared” and is presently “unaccounted for,” with no basis to

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assert that Officer Bader was responsible for the disappearance. (Compl. 4–5.)

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With respect to his goal of getting the money back, Mr. Sams has come to the wrong

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forum. The proper avenue for recovering his lawfully seized property is provided in NRS

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179.085.

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CONCLUSION

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IT IS HEREBY ORDERED that the motion to dismiss (ECF No. 11) is GRANTED.

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IT IS FURTHER ORDERED that the motion for entry of default (ECF No. 14) and

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motion for default judgment (ECF No. 16) are DENIED.
IT IS SO ORDERED. 24 April 2018.

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_____________________________________
ROBERT C. JONES
United States District Judge

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