Arnold v. U.S. Forest Serv.
| Decision Date | 13 June 2016 |
| Docket Number | Case No. 3:14-cv-00421-MMD-WGC |
| Parties | DAVID ARNOLD, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant. |
| Court | U.S. District Court — District of Nevada |
Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb (ECF No. 6) ("R&R") relating to Plaintiff David Arnold's ("Arnold") amended complaint (ECF No. 5). The Court has reviewed Plaintiff's objections. (ECF No. 10.) For the reasons discussed below, the R&R is accepted in part. Arnold's amended complaint is dismissed without prejudice with respect to his Rehabilitation Act claim and dismissed with prejudice on all other counts.
Arnold, litigating pro se, filed an application to proceed in forma pauperis accompanied by a proposed complaint on August 13, 2014. (ECF Nos. 1, 1-1.) His complaint centers on the allegations that he was forced, by threat of arrest and seizure of his belongings, to leave his campsite in a national park before the applicable park rules required him to do so.1 Arnold seeks $1,000,000 in damages, as well as injunctive relief, fees and costs. (ECF No. 1-1 at 13.) On August 26, 2014, the Magistrate Judgegranted Arnold's application to proceed in forma pauperis and screened the complaint pursuant to 28 U.S.C. § 1915. (ECF No. 3.) Arnold's complaint was dismissed without prejudice because it failed to state a claim, and he was given leave to amend to correct the deficiencies noted by the Magistrate Judge. (Id.) Arnold filed an amended complaint on September 15, 2014. (ECF No. 5.) Judge Cobb issued the R&R, recommending this Court dismiss the amended complaint with prejudice and deny Arnold's request for a preliminary injunction as moot. (ECF No. 6.)
In his objections, Arnold raises a number of procedural and substantive arguments. He argues that a magistrate judge had no jurisdiction to screen his complaint (ECF No. 10 at 4), that Magistrate Judge Cobb was biased because he had also presided over criminal proceedings against Arnold (id. at 7),2 that the R&R mischaracterizes the allegations (id. at 15-17), that his allegations support cognizable claims for relief (id. at 22-24), and finally that even if he has not stated claims, his complaint should not be dismissed with prejudice (id. at 21). The Court will address each of these objections in turn.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the report and recommendation to which objection is made." 28 U.S.C. § 636(b)(1). In light of Arnold's objections, the Court has engaged in a de novo review to determine whether to adopt Magistrate Judge Cobb's recommendations.
28 U.S.C. § 1915 provides that "the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against adefendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). This provision applies to all actions filed in forma pauperis, whether or not the plaintiff is incarcerated. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Rule 8 notice pleading standard requires Plaintiff to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. When determining the sufficiency of a claim, "[w]e accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the non-moving party[; however, this tenet does not apply to] . . . legal conclusions . . . cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks omitted).
Mindful of the fact that the Supreme Court has "instructed the federal courts to liberally construe the 'inartful pleading' of pro se litigants," Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), the Court will view Arnold's pleadings with the appropriate degree of leniency.
///
///
///
The Court agrees with the R&R's recommendation to dismiss Arnold's amended complaint with prejudice, except with respect to his retaliation claim based on the Rehabilitation Act.
As an initial matter, Arnold questions a magistrate judge's authority to dismiss his complaint with leave to amend. Rather than challenge the Magistrate Judge's order when it was issued, however, Arnold filed an amended complaint. In any event, the Magistrate Judge was acting within his authority. Dismissal with leave to amend is non-dispositive and therefore within the authority granted by 18 U.S.C. § 636. The order did not end Arnold's suit, rather, it gave him the opportunity correct his complaint. The Ninth Circuit has recognized the distinction between non-dispositive dismissals and dispositive ones. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) ().
28 U.S.C. § 1915 allows a plaintiff to proceed with a lawsuit without paying a filing fee if the plaintiff is able to show that they are indigent. Courts are required to screen an in forma pauperis complaint to determine whether dismissal is appropriate under certain circumstances.3 See Lopez, 203 F.3d at 1126 (). Section 1915(e)(B)(ii) directs courts to dismiss the case "at any time" if it determines that the plaintiff has failed to state a claim upon which relief may be granted. Though the word "prisoner" appears throughout § 1915, the requirement that a court dismiss a complaint which fails to state a claim applies to
///prisoners as well as non-prisoners proceeding in forma pauperis. See id. at 1129 ; see also see also Calhoun, 254 F.3d 845.
The Magistrate Judge acted within his authority in screening Plaintiff's complaint and amended complaint.
Arnold asserts that Judge Cobb is biased because Arnold previously appeared before him and appealed a number of his rulings. (ECF No. 10 at 8, 20, 21.) In fact, Arnold goes on to request that Judge Cobb be removed from the case and sanctioned. (Id. at 10.)
The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is: "[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986) (quotation omitted). Normally, the alleged bias must stem from an "extrajudicial source." Liteky v. United States, 510 U.S. 540, 554-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). "[J]udicial rulings alone almost never constitute valid basis for a bias or partiality motion." Id. "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id.
Arnold has not alleged any plausible basis for finding the Magistrate Judge was biased. The R&R explains its reasoning based on Arnold's allegations and the applicable law. Arnold contends that the Court's failure to direct service on defendants and schedule a hearing on his motion for preliminary injunction is evidence of bias.4 However, this process applies in every case that involves an in forma pauperis
///application. The court screens the complaint first and only directs service if the complaint states a claim. Indeed, the court may dismiss an action filed in forma pauperis before service of process if it is clear that the plaintiff cannot make out a claim. See, e.g., Cooper v. Sumner, 672 F. Supp. 1361, 1364 (D. Nev. 1987). In sum, there is no support for Arnold's claim that the Magistrate Judge's conclusions were motivated by any bias.
Arnold divides his amended complaint into three causes of action. (ECF No. 5 at 8-17.) The three sections he identifies as causes, however, are not actually three legal bases for a civil claim. Cause 1 and Cause 2 identified several, sometimes overlapping, legal theories, and Cause 3 is a request for a preliminary injunction rather than a cause of action. For the purpose of clarity, the Court will address each of the legal theories he references in his amended complaint separately.
The R&R finds that Arnold has not stated a claim under the Federal Tort Claims Act ("FTCA") because Arnold has not alleged that he exhausted...
To continue reading
Request your trial