649 F.3d 1061 (9th Cir. 2011), 10-15520, Fayer v. Vaughn

Docket Nº:10-15520.
Citation:649 F.3d 1061
Opinion Judge:PER CURIAM:
Party Name:Alex FAYER, aka James McLynn, Plaintiff-Appellant, v. Arthur VAUGHN; State of Nevada, ex rel. Nevada Gaming Control Board, Enforcement Division; Mirage Casino-Hotel, Defendants-Appellees.
Attorney:Thea Marie Sankiewicz, Nersesian & Sankiewicz, Las Vegas, NV, for plaintiff-appellant Alex Fayer. Michael P. Somps, Senior Deputy Attorney General, State of Nevada, for defendant-appellees Arthur Vaughn and the State of Nevada ex rel. Nevada Gaming Control Board, Enforcement Division. Michael B. ...
Judge Panel:Before: ALFRED T. GOODWIN and N. RANDY SMITH, Circuit Judges, and RANER C. COLLINS, District Judge.[**]
Case Date:May 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 1061

649 F.3d 1061 (9th Cir. 2011)

Alex FAYER, aka James McLynn, Plaintiff-Appellant,

v.

Arthur VAUGHN; State of Nevada, ex rel. Nevada Gaming Control Board, Enforcement Division; Mirage Casino-Hotel, Defendants-Appellees.

No. 10-15520.

United States Court of Appeals, Ninth Circuit.

May 4, 2011

Submitted April 12, 2011.[*]

Page 1062

Thea Marie Sankiewicz, Nersesian & Sankiewicz, Las Vegas, NV, for plaintiff-appellant Alex Fayer.

Michael P. Somps, Senior Deputy Attorney General, State of Nevada, for defendant-appellees Arthur Vaughn and the State of Nevada ex rel. Nevada Gaming Control Board, Enforcement Division.

Michael B. Lee, Kravitz, Schnitzer, Sloane & Johnson, Chtd., Las Vegas, NV, for defendant-appellee the Mirage Casino-Hotel.

Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Senior District Judge, Presiding. D.C. No. 2:09-cv-02396-ECR-LRL.

Before: ALFRED T. GOODWIN and N. RANDY SMITH, Circuit Judges, and RANER C. COLLINS, District Judge.[**]

Page 1063

OPINION

PER CURIAM:

We affirm the district court's dismissal of Alex Fayer's amended complaint under Federal Rule of Civil Procedure 12(b)(6). Nevada Revised Statutes (" NRS" ) § 205.465 makes it " unlawful for a person to possess ... any document or personal identifying information for the purpose of establishing a false status ... or identity." Fayer admitted to Agent Arthur Vaughn of the Nevada Gaming Control Board (" NGCB" ) that he possessed and used an unofficial identification card and credit card in the name of " James McLynn" to gamble at several Las Vegas casinos. Fayer's admissions provided Vaughn with probable cause to believe Fayer had committed a crime, therefore permitting Vaughn to arrest Fayer. As a result, Fayer's amended complaint failed to state plausible claims for false arrest, conspiracy to commit false arrest, false imprisonment, and premises liability under state and federal law.

I. Background

Fayer is an " advantage gambler," meaning he is a regular net winner in Las Vegas casinos. On October 9, 2008, Fayer wagered on sports at the Bellagio and Circus Circus casinos under the name " James McLynn" and won $8,000. When Fayer presented his winning tickets to MGM management,1 management informed him that it had a problem redeeming his tickets. He was then directed to speak with the manager at the Mirage Hotel-Casino. Fayer went to the Mirage. There, the manager denied payment of his tickets.

Believing MGM had unlawfully denied payment of his tickets, Fayer contacted the NGCB for assistance. Vaughn, an agent with the Enforcement Division of the NGCB, responded and requested that Fayer meet him at the Mirage's cashier cage. At their meeting, Vaughn confronted Fayer with records from the MGM family of casinos. The records indicated that Fayer had previously redeemed tickets under the names Alex Fayer and James McLynn. Fayer admitted he gambled under the name James McLynn. He also admitted (1) he possessed and used a credit card in the name James McLynn and (2) had shown, in the past, unofficial identification acquired from a non-governmental entity to MGM affiliates in the name of James McLynn. Vaughn then arrested Fayer for, among other things, possession of false identification documents in violation of NRS § 205.465. Nevada eventually dismissed the charges.

On August 14, 2009, Fayer filed suit against Vaughn, the NGCB, and the Mirage in Nevada state court alleging claims for (1) false arrest/false imprisonment, battery, and premises liability under Nevada law; and (2) false arrest and conspiracy to commit false arrest under 42 U.S.C. § 1983. The defendants removed the action to federal court on December 18, 2009. Fayer filed an amended complaint in federal district court on December 31, 2009. Under Rule 12(b)(6), the district court granted defendants' separate motions to dismiss all the claims in Fayer's amended complaint and denied Fayer leave to amend. On appeal, Fayer challenges the dismissal of each of his claims. 2

II. Standard of Review

We review de novo the district court's decision to grant defendants' motions to dismiss under

Page 1064

Federal Rule of Civil Procedure 12(b)(6). Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir.2008). A motion to dismiss will only be granted if the complaint fails to allege " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘ probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations omitted).

" We accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party." Manzarek, 519 F.3d at 1031. Although factual allegations are taken as true, we do not " assume the truth of legal conclusions merely because they are cast in the form of factual allegations." W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Therefore, " conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004) (internal quotation marks and citation omitted); accord Iqbal, 129 S.Ct. at 1950.

III. Probable Cause to Arrest

Fayer's false arrest, false imprisonment, and related § 1983 claims hinge on his allegation that Vaughn lacked probable...

To continue reading

FREE SIGN UP