-GWF Barren v. Roger et al, No. 2:2011cv00650 - Document 2 (D. Nev. 2011)
Court Description: ORDER Granting 1 Application for Leave to Proceed in forma pauperis. Plaintiff is permitted to maintain this action to conclusion without prepayment of any additional fees. FURTHER ORDERED that Plaintiff may pursue his 42 USC § 1983 claims ag ainst Office T. Robinson, Officer R. Kent, and Officer D. Shane alleging violations of his fourth amendment rights. Plaintiff's claim against Clark County District Attorney David Roger is dismissed with prejudice on ground of prosecutoria l immunity. FURTHER ORDERED the Clerk shall file the complaint and issue summons, and deliver summons the the US Marshal. Plaintiff shall have 20 days to furnish the required USM-285 forms to the US Marshal. Signed by Magistrate Judge George Foley, Jr. on 8/3/11. (Copies have been distributed pursuant to the NEF: blank 285 forms to Pla - MMM)
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-GWF Barren v. Roger et al Doc. 2 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 13 14 15 16 GREGORY D. BARREN, Sr., ) ) Plaintiff, ) ) vs. ) ) DAVID ROGERS, an individual; OFFICER T. ) ROBINSON, P# 7466, an individual; OFFICER R. ) KENT, P # 6179, and individual; and OFFICER ) D. SHANE, P # 6727, an individual, ) ) Defendants. ) __________________________________________) Case No. 2:11 cv-00650-RLH-GWF FINDINGS AND RECOMMENDATIONS Motion to Proceed In Forma Pauperis (#1) This matter is before the Court on Plaintiff's Complaint and Application to Proceed In Forma Pauperis (Dkt. #1), filed April 26, 2011. 17 BACKGROUND 18 Plaintiff Gregory Barren claims that Defendants arrested him for the "strangulation, 19 kidnap[,] and coercion" of his girlfriend. (Dkt. #1). At approximately 9:00 a.m. on June 10, 2010, 20 Plaintiff states that he and his girlfriend had an argument that included yelling and slamming a 21 board to the floor. After the argument, Plaintiff's girlfriend went to her sister's house to calm down. 22 When she returned approximately one hour later, Plaintiff asked her to gather her belongings and 23 leave. Plaintiff alleges that she then became very "emotional," at which point Plaintiff got on the 24 roof and began flying a kite. 25 While on the roof, Plaintiff states that Police Officers T. Robinson and R. Kent entered his 26 backyard and ordered him to get down. When he got down from the roof, Officer D. Shane 27 handcuffed Plaintiff. Plaintiff states that when he asked the officers why he was being arrested, the 28 officers ignored him. The officers did, however, repeatedly ask Plaintiff if everything was "ok" or Dockets.Justia.com 1 if "something had happened between [Plaintiff] and [his girlfriend]." Plaintiff states that he 2 consistently told the officers that other than a "common argument," nothing had happened. 3 Approximately one hour later, Officer T. Robinson informed Plaintiff that he was being 4 taken to jail for a twelve-hour cool-down period. However, during booking, Plaintiff was informed 5 of charges against him for strangling, kidnaping, and coercion of his girlfriend. Plaintiff states that 6 he and his girlfriend immediately denied the validity of these allegations, yet Plaintiff was still 7 detained for an unspecified period of time. 8 As a result of the incident discussed above, Plaintiff filed a Civil Rights Complaint pursuant 9 to 42 U.S.C. § 1983, alleging a claim for a violation of his Fourth Amendment right to be free from 10 unreasonable seizure. 11 12 DISCUSSION I. 13 In Forma Pauperis Application Plaintiff filed this instant action and attached a financial affidavit to his application and 14 complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff's financial affidavit pursuant to 15 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee and Plaintiff's 16 request to proceed in forma pauperis will be granted. 17 II. 18 Screening of the Complaint Upon granting a request to proceed in forma pauperis, a court must additionally screen the 19 complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to 20 dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which 21 relief may be granted, or seeks monetary relief from an individual who is immune from such relief. 22 28 U.S.C. § 1915(e)(2). 23 A complaint may be dismissed as frivolous where it is premised on a nonexistent legal 24 interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Moreover, 25 "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the 26 irrational or the wholly incredible, whether or not there are judicially noticeable facts available to 27 contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). 28 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 2 1 provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard 2 under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. See 3 Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure 4 to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support 5 of the claim that would entitle him to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 6 1999). In making this determination, the court takes as true all allegations of material facts stated in 7 the complaint, and the court construes them in the light most favorable to the plaintiff. See 8 Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are 9 held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 10 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). While the standard 11 under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than 12 mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007). A 13 formulaic recitation of the elements of a cause of action is insufficient. Id.; Papasan v. Allain, 478 14 U.S. 265, 286 (1986). 15 All or part of a complaint filed may therefore be dismissed sua sponte if the prisoner's 16 claims lack an arguable basis either in law or in fact. This includes claims based on legal 17 conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims 18 of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful 19 factual allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 20 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 21 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 22 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 23 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 24 F.3d 1103, 1106 (9th Cir. 1995). 25 A. 26 In his complaint, Plaintiff names Clark County District Attorney David Roger based on Plaintiff's § 1983 Claims for Due Process Violations 27 allegations that he violated Plaintiff's due process rights when Mr. Roger participated in the various 28 investigations into and prosecution of Plaintiff. Prosecutors are absolutely immune from civil suits 3 1 for damages under § 1983 that challenge activities related to the initiation and presentation of 2 criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409 (1976). Here, Plaintiff's allegations 3 relate to prosecutorial functions intimately associated with the judicial phase of the criminal 4 process. As a result, Plaintiff's claims against Clark County District Attorney David Roger must be 5 dismissed with prejudice on grounds of prosecutorial immunity. Id.; see also Stevens v. Rifkin, 608 6 F.Supp. 710, 728 (N.D. Cal. 1984); 28 U.S.C. § 1915A(b)(2). 7 B. 8 Plaintiff claims that the his arrest constituted an unlawful seizure in violation of his Fourth 9 10 Plaintiff's § 1983 Claims for Unlawful Seizure Amendment rights. The Fourth Amendment protects "[t]he right of people to be secure in their persons, houses, 11 papers, and effects, against unreasonable search and seizure." U.S. Const. Amend. IV. An arrest 12 made without a warrant requires a showing of probable cause. Gilker v. Baker, 576 F.2d 245, 246 13 (9th Cir. 2001). An arrest made without probable cause or other justification provides the basis for 14 a claim of unlawful arrest under § 1983 as a violation of the Fourth Amendment. Dubner v. City of 15 San Francisco, 266 F .3d 959 (9th Cir. 2001). A warrantless arrest is reasonable where the officer 16 has probable cause to believe a crime has been or is being committed. Devenpeck v. Alford, 543 17 U.S. 146, 152 (2004). "If an officer has probable cause to believe that an individual has committed 18 even a very minor criminal offense in his presence, he may, without violating the Fourth 19 Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). 20 Whether a police officer has probable cause to arrest is ascertained by looking at the facts 21 known to the officer at the time of the arrest. Turner v. County of Washoe, 759 F.Supp. 630, 634 22 (D.Nev. 1991). Probable cause exists if the facts and circumstances within the person's knowledge 23 and of which they have reasonably trustworthy information are sufficient to warrant a prudent man 24 in believing that the person had committed a crime. Id. The existence of probable cause vitiates 25 any claim of unlawful arrest. Pierson v. Ray, 386 U.S. 547 (1967); Wyatt v. Cole, 504 U.S. 158, 26 165 (1992); Turner, 759 F.Supp. at 633 (stating "It has long been established that a police officer 27 who arrests with probable cause is immune from suit in a civil rights action"). 28 Whether charges are later dismissed does not affect the determination of whether probable cause 4 1 existed to support the arrest. Beauregard v. Wingard, 362 F.2d 901, 903 (9th Cir. 1996). 2 The plaintiff bears the burden of proof on the issue of unlawful arrest, which can be 3 satisfied by showing that the arrest was conducted without a valid warrant. Dubner, 266 F.3d at 4 965. If the arrest was warrantless, the burden then shifts to the defendant to provide some evidence 5 that the arresting officers had probable cause for a warrantless arrest. Id. The plaintiff still bears 6 the ultimate burden of proof, but the burden of production falls on the defendant. Id. 7 In this case, Barren alleges that the defendant police officers arrested him without a warrant 8 or probable cause. Plaintiff states that he was on his roof, flying a kite, when the Defendants 9 ordered him to come down off the roof, where they subsequently handcuffed and arrested Plaintiff 10 for the "strangulation, kidnap[,] and coercion" of Plaintiff's girlfriend. Plaintiff also alleges that 11 there is no evidence that would show the officers had probable cause for their warrantless arrest. 12 Specifically, Plaintiff alleges that he was not breaking any laws when he was arrested--he maintains 13 that after having an argument with his girlfriend approximately an hour before the Defendants 14 arrived, he was flying a kite from his rooftop. Further, Plaintiff alleges that his actions, coupled 15 with "unsubstantiated allegations," are not adequate cause for his arrest. 16 Thus, accepting as true all allegations of material fact stated in the complaint and having 17 construed them in the light most favorable to the Plaintiff, Barren has stated a viable claim for an 18 unlawful seizure based on Defendants' warrantless arrest of the Plaintiff on June 10, 2010. 19 III. 20 Conclusion Pursuant to 42 U.S.C. § 1983, Plaintiff's claims against Defendants allege that a government 21 official violated at least one of Plaintiff's federal constitutional rights. The screening of Plaintiff's 22 Complaint (Dkt. #1) has been completed pursuant to § 1915(e). Accordingly, 23 24 25 IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis (Dkt. #1) is granted. IT IS FURTHER ORDERED that the movant herein is permitted to maintain this action 26 to conclusion without necessity of prepayment of any additional fees or costs or the giving of 27 security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the 28 issuance of subpoenas at government expense. 5 1 IT IS FURTHER ORDERED that Plaintiff may pursue his 42 U.S.C. § 1983 claims 2 against Officer T. Robinson, P # 7466; Officer R. Kent, P # 6179; and Officer D. Shane, P # 6727 3 alleging violations of his fourth amendment rights. However, Plaintiff's claim against Clark 4 County District Attorney David Roger is dismissed with prejudice on grounds of prosecutorial 5 immunity. 6 IT IS FURTHER ORDERED that the Clerk of the Court shall file the complaint, issue 7 summons to the defendants named in the complaint, and deliver the summons to the U.S. Marshal 8 for service. Plaintiff shall have twenty (20) days to furnish the required USM-285 forms to the 9 U.S. Marshal at 333 Las Vegas Blvd. South, Suite 2058, Las Vegas, Nevada 89101. After Plaintiff 10 receives copies of the completed USM-285 forms from the U.S. Marshal, he has twenty (20) days 11 to file a notice with the court identifying whether Defendants were served. If Plaintiff wishes to 12 have the U.S. Marshall attempt service again on any unserved defendant, then a motion must be 13 filed with the court identifying the unserved defendant, specifying a more detailed name and 14 address and indicating whether some other manner of service should be used. Pursuant to Rule 15 4(m) of the Federal Rules of Civil Procedure, service must be accomplished within one hundred 16 twenty (120) days from the date that the complaint was filed. 17 IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon Defendants, or 18 their attorney if they have retained one, a copy of every pleading, motion, or other document 19 submitted for consideration by the court. Plaintiff shall include with the original paper submitted 20 for filing a certificate stating the date that a true and correct copy of the document was mailed to 21 Defendants or their counsel. The Court may disregard any paper received by a district judge, 22 magistrate judge, or the Clerk that fails to include a certificate of service. 23 DATED this 3rd day of August, 2011. 24 25 26 ______________________________________ GEORGE FOLEY, JR. U.S. MAGISTRATE JUDGE 27 28 6
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