Igbinovia v. Hehn, et al, No. 2:2022cv01383 - Document 3 (D. Nev. 2022)
Court Description: ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis. REPORT AND RECOMMENDATION. IT IS HEREBY RECOMMENDED that Plaintiff's First Cause of Action alleging a violation of the Fourteenth Amendment against the Clark Cou nty District Attorney's Office and his defense counsel be dismissed with prejudice because these claims fail as a matter of law. See order for details. Objections to R&R due by 9/22/2022. Amended Complaint deadline: 10/11/2022. Signed by Magistrate Judge Elayna J. Youchah on 9/8/2022. (Copies have been distributed pursuant to the NEF - HAM)
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Igbinovia v. Hehn, et al Doc. 3 Case 2:22-cv-01383-JAD-EJY Document 3 Filed 09/08/22 Page 1 of 8 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 ENOMA IGBINOVIA 5 Plaintiff, 6 7 Case No. 2:22-cv-01383-JAD-EJY ORDER v. and WILLIAM HEHN, et al., 8 REPORT AND RECOMMENDATION Defendants. 9 10 Pending before the Court is the application to proceed in forma pauperis (“IFP”) and civil 11 rights complaint filed by Plaintiff Enoma Igbinovia. ECF Nos. 1, 1-1. Plaintiff’s IFP application is 12 complete and provides information necessary to find the application granted. 13 I. Screening Standard 14 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 15 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 16 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted, 17 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 18 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 19 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 20 (9th Cir. 2012). Therefore, to survive § 1915(e)(2) review, a complaint must “contain sufficient 21 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009). The Court liberally construes pro se complaints and may only 23 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his 24 claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) 25 (internal citation omitted). 26 When considering whether a complaint is sufficient to state a claim, all allegations of 27 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit 28 P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although 1 Dockets.Justia.com Case 2:22-cv-01383-JAD-EJY Document 3 Filed 09/08/22 Page 2 of 8 1 the standard under Federal Rule of Civil Procedure 12(b)(6) does not require detailed factual 2 allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. 3 Twombly, 550 U.S. 544, 555 (2007). Recitation of the elements of a cause of action alone is 4 insufficient. Id. Unless it is clear the complaint’s deficiencies cannot be cured through amendment, 5 a pro se plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 6 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 7 II. Plaintiff’s Complaint 8 Plaintiff asserts that in 1997 he was wrongly arrested, charged with, and found guilty of 9 various state law claims for which he ultimately served more than 20 years in prison. Plaintiff 10 recounts the events leading to his arrest and conviction in great detail before alleging that his co- 11 defendant was ultimately released based on prosecutorial misconduct and the use of false and 12 fabricated evidence. 13 Plaintiff attaches to his Complaint a supplement to a post-conviction petition for habeas 14 corpus filed in the Eighth Judicial District Court. ECF No. 1-1 at 34. Plaintiff does not attach any 15 documents evidencing the outcome of that Petition and the Court could find none on the state court 16 web site. Indeed, Plaintiff admits he was released on state parole. ECF No. 1-1 at 15. Nevertheless, 17 Plaintiff states he is “actually innocent”; that his codefendant was released based on “clerical errors”; 18 and that law of the case leading to his codefendant’s release should apply to him as well. ECF No. 19 1-1 at 11-12. 20 Plaintiff’s first cause of action is brought under the Fourteenth Amendment and asserts false 21 evidence was introduced and used to convict Plaintiff of crimes thereby depriving Plaintiff of liberty 22 for 23 years. Plaintiff concludes that the police, the prosecutor, and defense attorneys were involved 23 in this conduct. Id. at 5. Plaintiff’s second cause of action is brought under the Eighth Amendment 24 and alleges that Defendants used false evidence to charge and convict Plaintiff. Plaintiff says when 25 in prison he faced the harshest living conditions amounting to cruel and unusual punishment. 26 Plaintiff says the false and fabricated evidence was also cruel and unusual. Plaintiff says he now 27 suffers from post-traumatic stress disorder. 28 2 Case 2:22-cv-01383-JAD-EJY Document 3 Filed 09/08/22 Page 3 of 8 1 Plaintiff’s third cause of action is also asserted under the Eighth Amendment and alleges his 2 rights were violated when Defendants failed to protect him after falsely and wrongfully convicting 3 him. Plaintiff says he was housed with known gang members and he was stabbed multiple times 4 without provocation. Plaintiff says that he was at one time placed on life support due to his injuries. 5 Plaintiff’s fourth cause of action under the Eighth Amendment arises from unlawful and false 6 confinement. Plaintiff says he was kept in solitary confinement for seven years. 7 A. 8 9 Plaintiff’s Fourteenth Amendment Claim Fails As A Matter Of Law As Asserted Against Members Of The Clark County District Attorney’s Office And His Defense Counsel. Plaintiff Also Presently Fails To State A Claim Against Las Vegas Metropolitan Police Department Officers. 10 Under Ninth Circuit authority, absolute prosecutorial immunity covers “knowing use of false 11 testimony at trial, the suppression of exculpatory evidence, and malicious prosecution” since these 12 are duties that are intimately associated with the judicial phase. Milstein v. Cooley, 257 F.3d 1004, 13 1008–9 (9th Cir. 2001); Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003) (“A prosecutor’s 14 decision not to preserve or turn over exculpatory material before trial, during trial, or after conviction 15 is a violation of due process under Brady v. Maryland, 373 U.S. 83, 87 (1963)). It is, nonetheless, 16 an exercise of the prosecutorial function and entitles the prosecutor to absolute immunity from a 17 civil suit for damages.”). Thus, Plaintiff’s claims against the Clark County District Attorney’s Office 18 and any Assistant District Attorney fail as a matter of law and should be dismissed with prejudice. 19 Plaintiff’s defense attorney is not a state actor for purposes of § 1983. Actions under § 1983 20 are only able to be brought against state actors and not private citizens or those acting as private 21 citizens. Polk Cty. v. Dodson, 454 U.S. 312, 318 (1981) (“[A] lawyer representing a client is not, 22 by virtue of being an officer of the court, a state actor ‘under color of state law’ within the meaning 23 of § 1983.”). Plaintiff’s claims against his defense counsel also fail as a matter of law because, 24 whether a public defender or privately retained, such counsel is not a state actor for purpose of § 25 1983 liability. 26 With respect to the individual law enforcement officers, Plaintiff has a Fourteenth 27 Amendment, “constitutional due process right not to be subjected to criminal charges on the basis 28 of false evidence that was deliberately fabricated by the government.” Devereaux v. Abbey, 263 3 Case 2:22-cv-01383-JAD-EJY Document 3 Filed 09/08/22 Page 4 of 8 1 F.3d 1070, 1074-75 (9th Cir. 2001); Miller v. Pate, 386 U.S. 1, 7 (1967). To make out a claim for 2 deliberate fabrication of evidence, Plaintiff must show at least one of the following two propositions: 3 (1) Defendants continued their investigation of Plaintiff despite the fact that they knew or should 4 have known that he was innocent; or (2) Defendants used investigative techniques that were so 5 coercive and abusive that they knew or should have known that those techniques would yield false 6 information. Id. at 1076. 7 Plaintiff’s Complaint discusses alleged lies told by the supposed victim and the victim’s 8 girlfriend, the introduction of guns that Plaintiff states was “false evidence,” and the intentional, 9 willful, and deliberate use of such evidence to corroborate the victim’s lies. Plaintiff does not allege 10 facts relating to an investigation despite knowledge of his innocence or coercive or abusive 11 investigative techniques that law enforcement knew or should have known would yield false 12 information. For this reason, Plaintiff fails to plead facts that facially state a Fourteenth Amendment 13 claim based on the conduct of law enforcement. However, the Court finds this claim is not futile 14 and therefore recommends dismissal of Plaintiff’s Fourteenth Amendment claim against officers 15 with the Las Vegas Metropolitan Police Department without prejudice. 16 17 18 B. Plaintiff’s Eighth Amendment Claim Fails, But The Court Recommends Dismissal Without Prejudice. i. The Eighth Amendment standard. 19 A prison official's “deliberate indifference” to a substantial risk of serious harm to an inmate 20 violates the Eighth Amendment. Helling v. McKinney, 509 U.S. 25 (1993); Wilson v. Seiter, 501 21 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97, 102 (1976). The Constitution “does not mandate 22 comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), but neither does it permit 23 inhumane ones, and it is settled law that “the treatment a prisoner receives in prison and the 24 conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” 25 Helling, 509 U.S. at 31. Specifically, the Eighth Amendment imposes duties on prison officials that 26 include (1) ensuring inmates receive adequate food, clothing, shelter, and medical care, and (2) 27 taking “reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 28 517, 527-28 (1984); Helling, 509 U.S. at 31-32; Estelle, 429 U.S. at 103. Courts have uniformly 4 Case 2:22-cv-01383-JAD-EJY Document 3 Filed 09/08/22 Page 5 of 8 1 held “prison officials have a duty ... to protect prisoners from violence at the hands of other 2 prisoners.” Cortes–Quinones v. Jimenez–Nettleship, 842 F.2d 556, 558 (1st Cir. 1988) (internal 3 quotation marks and citation omitted), cert. denied, 488 U.S. 823, (1988); see also Wilson, 501 U.S. 4 at 303 (describing “the protection [an inmate] is afforded against other inmates” as a “conditions of 5 confinement” subject to the strictures of the Eighth Amendment). 6 Having incarcerated “persons [with] demonstrated proclivit[ies] for antisocial criminal, and 7 often violent, conduct” Hudson, 468 U.S. at 526, while “having stripped them of virtually every 8 means of self-protection and foreclosed their access to outside aid, the government and its officials 9 are not free to let the state of nature take its course.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) 10 (internal quotation marks, citation, and alterations omitted). Prison conditions may be “restrictive 11 and even harsh”; however, “[b]eing violently assaulted in prison is simply not part of the penalty 12 that criminal offenders pay for their offenses against society.” Id. at 833-34 (quoting Cortes– 13 Quinones, 842 F.2d at 558). 14 Still, case law hold that a prison official violates the Eighth Amendment only when two 15 requirements are met. First, the deprivation alleged must be objectively “sufficiently serious.” 16 Wilson, 501 U.S. at 298 (internal citation omitted). For a claim like the one here—based on prison 17 conditions generally and danger posed by other inmates—the prison official’s acts or omissions must 18 result in the denial of “the minimal civilized measure of life’s necessities” (Rhodes, 452 U.S. at 347), 19 and demonstrate the prisoner was incarcerated under conditions posing “an unreasonable risk of 20 serious damage to his future health.” Helling, 509 U.S. at 35. 21 The second requirement follows from the principle that “only the unnecessary and wanton 22 infliction of pain implicates the Eighth Amendment.” Wilson, 501 U.S., at 297 (internal quotation 23 marks, emphasis, and citations omitted). Under the subjective test, the prisoner must show that the 24 prison official had “a sufficiently culpable state of mind,” that amounts to “deliberate indifference 25 to inmate health or safety.” Farmer, 511 U.S. at 834 (internal citations and quote marks omitted). 26 Deliberate indifference occurs when a prison official “knows of and disregards an excessive risk to 27 inmate health or safety.” Id. at 837. Notably, “the official must both be aware of facts from which 28 the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 5 Case 2:22-cv-01383-JAD-EJY Document 3 Filed 09/08/22 Page 6 of 8 1 inference.” Id. Mere negligence is insufficient to show a violation of the Eighth Amendment. 2 Whitley v. Albers, 475 U.S. 312, 322 (1986) (distinguishing negligence from wanton conduct). 3 ii. Plaintiff fails to plead sufficient facts to state an Eighth Amendment Claim. 4 Although Plaintiff states the conditions of his confinement were abhorrent, this allegation in 5 and of itself, is insufficient to state an Eighth Amendment claim. As explained above, Plaintiff must 6 allege facts demonstrating denial of minimal civilized measure of life’s necessities in order to state 7 a facial violation of his Eighth Amendment constitutional rights. A conclusion that a violation 8 occurred because prison conditions were bad, or even very bad, simply does not state an Eighth 9 Amendment claim. Moreover, Plaintiff does not identify any individual employed by the prison 10 who was aware of or should have known of the alleged inhuman conditions under which he was 11 supposedly housed. Plaintiff also does not allege that any such individual failed to take any steps to 12 correct the conditions despite his or her knowledge. Confinement in harsh conditions does not 13 violate the Eighth Amendment. Use of words like “gruesome,” while suggesting something awful, 14 simply does not provide sufficient factual information, even if accepted as true, to state a 15 constitutional violation that is plausible on its face. 16 Similarly, Plaintiff’s assertion that his constitutional rights were violated while incarcerated 17 when he was stabbed and seriously injured by another (or more than one other) inmate does not, 18 alone, state an Eighth Amendment violation. Plaintiff does not allege that any prison official knew 19 or should have known of the danger posed before the events occurred or that such official failed to 20 act reasonably in light of that knowledge. Plaintiff also does not identify a single prison employee 21 or official, whether by name or title, who had or should have had the knowledge and failed to act. 22 Plaintiff does not state when the events he complains of occurred or how those events demonstrate 23 a prison official was deliberately indifferent to his safety. Plaintiff alleges no facts from which the 24 Court can infer such knowledge or deliberate indifference. “[A] pleading may not simply allege a 25 wrong has been committed and demand relief.” Sherrell v. Bank of Am., N.A., Case No. CV F 11- 26 1785-LJO (JLT), 2011 WL 6749765, at *4 (E.D. Cal. Dec. 22, 2011). Rule 8 of the Federal Rules 27 of Civil Procedure requires a complaint to plead sufficient facts to give a defendant fair notice of the 28 6 Case 2:22-cv-01383-JAD-EJY Document 3 Filed 09/08/22 Page 7 of 8 1 claims against him and the grounds upon which it rests. Yamaguchi v. United States Department of 2 Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) (citations omitted). 1 3 Despite Plaintiff’s pleading failures, the Court finds Plaintiff may be able to amend his 4 allegations by including factual information such that his Eighth Amendment claims could survive 5 screening. For this reason, the Court recommends Plaintiff’s conditions of confinement claim be 6 dismissed without prejudice. 7 III. IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma pauperis (ECF 8 9 10 Order No.1) is GRANTED. IV. Recommendation 11 IT IS HEREBY RECOMMENDED that Plaintiff’s First Cause of Action alleging a violation 12 of the Fourteenth Amendment against the Clark County District Attorney’s Office and his defense 13 counsel be dismissed with prejudice because these claims fail as a matter of law. 14 IT IS FURTHER RECOMMENDED that Plaintiff’s First Cause of Action alleging a 15 Fourteenth Amendment violation against Las Vegas Metropolitan Police Department Officers be 16 dismissed without prejudice and with leave to amend. 17 IT IS FURTHER RECOMMENDED that Plaintiff’s Second, Third, and Fourth Causes of 18 Action alleging violation of the Eighth Amendment based on the conditions of Plaintiff’s 19 confinement and failure to protect Plaintiff from serious risk of harm from other inmates be 20 dismissed without prejudice and with leave to amend. IT IS FURTHER RECOMMENDED that Plaintiff be given one opportunity to file an 21 22 amended complaint, which must be filed by or before October 11, 2022. 23 Plaintiff is advised that if he files an amended complaint, all factual allegations and claims 24 for relief must be stated in that filing. The Court cannot refer to Plaintiff’s original Complaint for 25 26 27 28 The Court notes that Plaintiff repeats his lack of guilt in several places of his Complaint, but does not state an attack on his conviction in a cause of action. Thus, the Court does not discuss this issue in detail. However, to the extent Plaintiff seeks to assert an attack that would render his conviction or sentence invalid, this claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). Heck holds that a 42 U.S.C. § 1983 claim that seeks to “render a conviction or sentence invalid,” where that conviction has not been reversed, expunged, or called into question, must be addressed through a writ of habeas corpus. Id. at 486-87. 1 7 Case 2:22-cv-01383-JAD-EJY Document 3 Filed 09/08/22 Page 8 of 8 1 purposes of determining if the amended complaint states a claim. Said in other words, the amended 2 complaint must be complete in and of itself. The amended complaint should address the deficiencies 3 identified in the above Report and Recommendation with respect to the claims against Las Vegas 4 Metropolitan Police Department Officers as well as those identified with respect to Plaintiff’s claims 5 of Eighth Amendment violations. 6 IT IS FURTHER RECOMMENDED that if Plaintiff fails to abide by the terms of this Order 7 or otherwise fails to state claims for relief in his Amended Complaint, this action be dismissed 8 without prejudice and without leave to amend. 9 Dated this 8th day of September, 2022. 10 11 12 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 13 14 NOTICE 15 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be 16 in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has 17 held that the courts of appeal may determine that an appeal has been waived due to the failure to file 18 objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also 19 held that (1) failure to file objections within the specified time and (2) failure to properly address 20 and brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 21 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 22 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 23 24 25 26 27 28 8
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