Freshwadda v. Boutos et al, No. 2:2023cv00880 - Document 7 (D. Nev. 2023)
Court Description: ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that Defendants Howell, Cox, and Flores-Lezama are dismissed without prejudice. IT IS FURTHER ORDERED that service must be accomplished on or befo re 12/27/2023. Plaintiff shall have until 10/19/2023 in which to furnish the U.S. Marshals Service with the required forms. Amended Complaint deadline: 10/30/2023. See Order for Details. Signed by Magistrate Judge Daniel J. Albregts on 9/29/2023. (Copies have been distributed pursuant to the NEF -cc: USM285 sent to P - JQC)
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Freshwadda v. Boutos et al Doc. 7 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 5 6 *** R.O. Brooks: Freshwadda, Plaintiff, 7 8 9 v. Case No. 2:23-cv-00880-CDS-DJA Order Nicholas Boutos; Kenneth Bourne; Genaro Howell; Tristy Cox; and Karen Flores-Lezama, 10 Defendants. 11 12 Under 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 13 authority to proceed in forma pauperis. (ECF No. 1). Plaintiff also submitted a complaint. (ECF 14 No. 1-1). Because the Court finds that Plaintiff’s application is complete, it grants his application 15 to proceed in forma pauperis. The Court also screens Plaintiff’s complaint. 16 I. 17 In forma pauperis application. Plaintiff filed the affidavit required by § 1915(a). (ECF No. 1). Plaintiff has shown an 18 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed 19 in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 20 Plaintiff’s complaint. 21 II. 22 Screening the complaint. Upon granting an application to proceed in forma pauperis, courts additionally screen the 23 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 24 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 26 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 27 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 28 Dockets.Justia.com 1 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 2 F.3d 1103, 1106 (9th Cir. 1995). 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 4 complaint for failure to state a claim upon which relief can be granted. Review under Rule 5 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 6 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 7 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 8 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 9 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 10 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 11 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 12 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 13 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 14 allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not 15 crossed the line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 16 U.S. at 570. Allegations of a pro se complaint are held to less stringent standards than formal 17 pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding 18 that liberal construction of pro se pleadings is required after Twombly and Iqbal). 19 Federal courts are courts of limited jurisdiction and possess only that power authorized by 20 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 21 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 22 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 23 federal law creates the cause of action or where the vindication of a right under state law 24 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 25 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 26 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 27 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 28 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Page 2 of 7 1 A. Plaintiff’s allegations. 2 Plaintiff sues five defendants: family services investigators Nicholas Boutos and Kenneth 3 Bourne; “bailiff deputy marshal” Genaro Howell; and state court clerks Tristy Cox and Karen 4 Flores-Lezama. Plaintiff sues each defendant in their official and individual capacities. Plaintiff 5 brings his claims under 42 U.S.C. § 1983. 1 Plaintiff claims that on May 9, 2023, while at the 6 Regional Justice Center in Courtroom 03A, Howell kidnapped him and then turned him over to 7 Boutos and Bourne. Boutos then placed Plaintiff in handcuffs, despite Plaintiff explaining that he 8 had injured shoulders. Plaintiff remained in these handcuffs in a position that hurt his shoulders 9 for three hours while Bourne, Boutos, and Howell 2 searched his criminal history, insinuating that 10 Plaintiff was a felon and joking about violating his rights. Plaintiff alleges that Bourne, Boutos, 11 and Howell never read him his Miranda rights and also “stole” his fingerprints, picture, “iris,” 12 and signature. 3 Plaintiff also alleges that Plaintiff claims that Cox and Flores-Lezama 13 “contributed to the violations by presenting incorrect information, copyright infringement and 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff also brings his claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Bivens applies when plaintiffs are suing federal officials for the violation of certain constitutional rights. See Smith v. Lopez, No. 2:13-cv-00892-GMN-PAL, 2014 WL 1302038, at *3 (D. Nev. March 28, 2014) (“[a]ctions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”) (internal citations and quotations omitted). But Defendants each appear to be state, not federal officials. The Court thus analyzes Plaintiff’s claims under § 1983. 2 Plaintiff refers to “officers,” by which he appears to be referring to Bourne, Boutos, and Howell. The Court liberally construes Plaintiff’s complaint as referring to these Defendants because Plaintiff refers to Bourne as “officer Bourne.” 3 Plaintiff’s claim regarding his Miranda rights is one that would necessarily imply the invalidity of a conviction or sentence and is thus barred by Heck v. Humphrey, 512 U.S. 477 (1993). See Jones v. Soong, No. 18-cv-00226-JAO-RLP, 2018 WL 4623638, at *2 (D. Haw. Sept. 26, 2018) (“claims that seek damages for an allegedly unlawful conviction based on a police officer’s alleged failure to read a defendant his Miranda rights during the arrest, are Heck-barred.”) (citing Trimble v. City of Santa Rosa, 49 F.3d 583, 584-85 (9th Cir. 1995) (finding a claim alleging that an officer failed to read Miranda warnings was Heck-barred)). Under Heck, if a § 1983 case seeking damages alleges constitutional violations that would necessarily imply the invalidity of a conviction or sentence, the prisoner must establish that the underlying sentence or conviction has been invalidated on appeal, by habeas petition, or through a similar proceeding. See Heck, 512 U.S. at 486-87. Because Plaintiff’s complaint does not establish that an underlying sentence or conviction has been invalidated on appeal, by habeas petition, or through a similar proceeding, the Court does not address Plaintiff’s Miranda claim because it is barred by Heck. Page 3 of 7 1 instructions for officers to continue with their unjustified and abusive behavior.” (ECF No. 1-1 at 2 4). 3 Plaintiff does not specify the Constitutional provisions or federal statutes under which he 4 brings his claims. To state a valid claim under § 1983, a plaintiff must allege a violation of rights 5 protected by the Constitution or created by federal statute proximately caused by the conduct of a 6 person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 7 Nonetheless, the Court construes Plaintiff’s complaint as alleging a Fourth Amendment excessive 8 force claim against Boutos and Bourne for placing and keeping him in handcuffs while ignoring 9 his complaints about his shoulders. However, Howell, Cox, and Flores-Lezama are immune 10 because Plaintiff’s allegations involve them performing tasks that are an integral part of the 11 judicial process. 12 1. 13 Fourth Amendment excessive force. The Fourth Amendment provides that ‘the right of the people to be secure in their persons, 14 houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. 15 U.S. Const. amend. IV. “[T]he Fourth Amendment is enforceable against the States through the 16 Fourteenth Amendment.” Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 17 528 (1967). Allegations of excessive force during the course of an arrest are analyzed under the 18 Fourth Amendment, which protects the right against unreasonable seizures of a person. Graham, 19 490 U.S. 386, 394-95 (1989). 20 21 22 23 24 25 26 27 The Supreme Court has explained: As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation ... An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional. Graham, 490 U.S. at 396-97 (internal citations omitted). 28 Page 4 of 7 1 Here, Plaintiff has alleged a colorable claim for excessive force in violation of the Fourth 2 Amendment against Boutos and Bourne. He asserts that Boutos handcuffed him and, although 3 Plaintiff informed Boutos and Bourne that the handcuffs were hurting his shoulders, Boutos and 4 Bourne kept him in the handcuffs for three hours. This is sufficient to allege a Fourth 5 Amendment claim against Boutos and Bourne. 6 2. Quasi- judicial immunity. 7 Judges and courts have absolute civil immunity for their judicial acts unless there is a 8 “clear absence” of subject-matter jurisdiction. Estes v. Gaston, No. 2:12-cv-01853, 2012 WL 9 6645609, at *3 (D. Nev. Nov. 26, 2012) (citing Stump v. Sparkman, 435 U.S. 349, 356-58 10 (1978)). Judicial immunity also extends to court staff, including court clerks and bailiffs. Mullis 11 v. U.S. Bankruptcy Court, 828 F.2d 1385, 1394 (9th Cir. 1987); Foley v. Graham, No. 2:16-cv- 12 01871-JAD-VCF, 2017 WL 1135225, at *3 (D. Nev. March 27, 2017) (citing Mullis, 828 F.2d at 13 1390 and extending immunity to bailiffs). Court staff has “absolute quasi-judicial immunity from 14 damages for civil rights violations when they perform tasks that are an integral part of the judicial 15 process.” Mullis, 828 F.2d at 1390. They are immune unless their acts “were done in the clear 16 absence of all jurisdiction.” Id. “[A] mistake or an act in excess of jurisdiction does not abrogate 17 judicial immunity, even if it results in ‘grave procedural errors.’” Id. 18 Here, Plaintiff’s allegations appear to concern a family court proceeding because he 19 alleges that the events took place at the Regional Justice Center in Courtroom 03A. Plaintiff’s 20 allegations regarding Howell, Cox, and Flores-Lezama all appear to involve tasks that are an 21 integral part of the judicial process. And the allegations are too vague for the Court to conclude 22 otherwise. Because Howell, Cox, and Flores-Lezama are immune from Plaintiff’s allegations as 23 he pleads them, the Court dismisses these defendants without prejudice. 24 25 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 26 pauperis (ECF No. 1) is granted. Plaintiff shall not be required to pre-pay the filing fee. 27 Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of 28 any additional fees or costs or the giving of a security therefor. This order granting leave to Page 5 of 7 1 proceed in forma pauperis shall not extend to the issuance and/or service of subpoenas at 2 government expense. IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff’s 3 4 complaint (ECF No. 1-1) on the docket and issue summons to Nicholas Boutos and Kenneth 5 Bourne. IT IS FURTHER ORDERED that Plaintiff’s claim for excessive force in violation of 6 7 the Fourth Amendment shall proceed against Boutos and Bourne. IT IS FURTHER ORDERED that Defendants Howell, Cox, and Flores-Lezama are 8 9 dismissed without prejudice. IT IS FURTHER ORDERED that service must be accomplished on or before 10 11 December 27, 2023. IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to deliver the 12 13 following to the U.S. Marshals Service: (1) two copies of the complaint (ECF No. 1-1); and 14 (2) the summonses to Boutos and Bourne. IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to mail Plaintiff 15 16 two blank copies of form USM-285. 4 IT IS FURTHER ORDERED that Plaintiff must complete one USM-285 form for each 17 18 Defendant and provide an address where each Defendant can be served with process. Once 19 completed, Plaintiff must provide the USM-285 forms to the U.S. Marshals Service. Plaintiff 20 shall have until October 19, 2023 in which to furnish the U.S. Marshals Service with the required 21 forms. IT IS FURTHER ORDERED that upon receipt of the issued summonses, the USM-285 22 23 forms, and the operative complaint—and pursuant to Federal Rule of Civil Procedure 4(c)(3)— 24 the U.S. Marshals Service shall attempt service upon Defendants. 25 26 27 28 4 The USM-285 form is also available at: https://www.usmarshals.gov/resources/forms/usm-285us-marshals-process-receipt-and-return. Page 6 of 7 1 IT IS FURTHER ORDERED that, within twenty-one days after receiving from the U.S. 2 Marshals Service a copy of the form USM-285 showing whether service has been accomplished, 3 Plaintiff must file a notice with the Court identifying whether the Defendants were served. If 4 Plaintiff wishes to have service again attempted on an unserved Defendant, he must file a motion 5 with the Court identifying the unserved Defendant and specifying a more detailed name and/or 6 address for said Defendant or whether some other manner of service should be attempted. 7 IT IS FURTHER ORDERED that from this point forward, Plaintiff shall serve upon 8 Defendants, or, if appearance has been entered by counsel, upon the attorney(s), a copy of every 9 pleading, motion, or other document submitted for consideration by the Court. Plaintiff shall 10 include with the original papers submitted for filing a certificate stating the date that a true and 11 correct copy of the document was mailed to Defendants or counsel for Defendants. The Court 12 may disregard any paper received by a District Judge or Magistrate Judge that has not been filed 13 with the Clerk, and any paper received by a District Judge, Magistrate Judge, or the Clerk that 14 fails to include a certificate of service. 15 IT IS FURTHER ORDERED that, to the extent Plaintiff wishes to file an amended 16 complaint and to the extent Plaintiff believes he can correct the noted deficiencies, he shall have 17 until October 30, 2023 to do so. If Plaintiff chooses to amend the complaint, Plaintiff is 18 informed that the Court cannot refer to a prior pleading (i.e., the original complaint) to make the 19 amended complaint complete. This is because, generally, an amended complaint supersedes the 20 original complaint. Local Rule 15-1(a) requires that an amended complaint be complete without 21 reference to any prior pleading. Once a plaintiff files an amended complaint, the original 22 complaint no longer serves any function in the case. Therefore, in an amended complaint, as in 23 an original complaint, each claim and the involvement of each Defendant must be sufficiently 24 alleged. 25 26 27 28 DATED: September 29, 2023 DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE Page 7 of 7
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