Fayer v. Vaughn

• Decision Date: 12 April 2011
• Docket Number: No. 10–15520.,10–15520.
• Citation: 2011 Daily Journal D.A.R. 6302,649 F.3d 1061,11 Cal. Daily Op. Serv. 5300
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

649 F.3d 1061

11 Cal. Daily Op. Serv. 5300

2011 Daily Journal D.A.R. 6302

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.

Submitted April 12, 2011.*Filed May 4, 2011.

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.^**

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 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 Atl. 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 cause to arrest him. “Under the Fourth Amendment, a warrantless arrest requires probable cause.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007). “Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested.” Id. (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). Nevada's definition of probable cause is virtually identical to the Lopez definition. See State v. McKellips, 118 Nev. 465, 49 P.3d 655, 660 (2002) (“Probable cause to arrest exists when police have reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution to believe that [a crime] has been ... committed by the person to be arrested.” (internal quotation marks and citation omitted)). The arresting officer's “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004).

In this case, Vaughn arrested Fayer for possession of false identification documents, illegal conduct under Nevada law. See NRS § 205.465 (“It is unlawful for a person to possess ... any document or personal identifying information for the purpose of establishing a false status ... or identity for himself....”).³ When he made the arrest, Vaughn knew the following: (1) Fayer admitted to gambling at various MGM casinos under the name “James McLynn,” (2) Fayer admitted to using identification (not issued by a government entity) identifying him as “James McLynn,” and (3) Fayer possessed and had used a credit card issued in the name of “James McLynn.” This information was more than sufficient to lead a person of reasonable caution to believe Fayer possessed documents or personal identifying information “for the purpose of establishing a ... false identity for himself” in contravention of NRS § 205.465. Because the facts in the amended complaint show that Fayer's arrest was supported by probable cause, Fayer cannot make out a facially plausible claim for false arrest or false imprisonment under Nevada law. See Hernandez v. City of Reno, 97 Nev. 429, 634 P.2d 668, 671 (1981) (“To establish false imprisonment of which false arrest is an integral part, it is ... necessary to prove that the person be restrained of his liberty under the probable imminence of force without any legal cause or justification.” (internal quotation marks and citation omitted) (emphasis added)). Accordingly, he also cannot allege a facially plausible claim for false arrest or conspiracy to commit false arrest under 42 U.S.C. § 1983.

IV. Battery

Once Vaughn had probable cause to believe Fayer violated NRS § 205.465—a class E felony under Nevada law—he had immediate legal authority to place Fayer under arrest. See NRS §§ 171.124(1)(b), 171.136(1). Fayer raised a battery claim in his amended complaint alleging that “Vaughn's actions in placing plaintiff in handcuffs and physically searching plaintiff were offensive and harmful in that they caused discomfort and embarrassment.” Fayer argues that, under Yada v. Simpson, “a police officer who uses more force than is reasonably necessary to effect a lawful arrest commits a battery upon the person arrested.” 112 Nev. 254, 913 P.2d 1261, 1262 (1996), superceded by statute on other grounds, NRS § 17.115, as recognized in RTTC Commc'ns, LLC v. Saratoga Flier, Inc., 121 Nev. 34, 110 P.3d 24, 29 (2005). ⁴

However, Fayer failed to allege facts suggesting Vaughn used...