Harriel v. Reno Police Dep't
| Decision Date | 01 February 2023 |
| Docket Number | 3:22-cv-00419-ART-CSD |
| Parties | NATHANIEL CHARLES HARRIEL, SR., Plaintiff v. RENO POLICE DEPARTMENT, et al., Defendants |
| Court | U.S. District Court — District of Nevada |
This Report and Recommendation is made to the Honorable Anne R Traum, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
Plaintiff who is an inmate in the Washoe County Detention Facility (WCDF) filed an application to proceed in forma pauperis (IFP) (ECF No. 1) and pro se complaint (ECF No. 1-1). Plaintiff then filed a motion for appointment of counsel. (ECF No. 3.) Plaintiff subsequently filed a second IFP application (ECF No. 5) and proposed first amended complaint (FAC) (ECF No. 6).
A person may be granted permission to proceed IFP if the person 28 U.S.C. § 1915(a)(1).
The Local Rules of Practice for the District of Nevada provide: LSR 1-1.
“[T]he supporting affidavits [must] state the facts as to [the] affiant's poverty with some particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).
An inmate submitting an application to proceed IFP must also “submit a certificate from the institution certifying the amount of funds currently held in the applicant's trust account at the institution and the net deposits in the applicant's account for the six months prior to the date of submission of the application.” LSR 1-2; see also 28 U.S.C. § 1915(a)(2). If the inmate has been at the institution for less than six months, “the certificate must show the account's activity for this shortened period.” LSR 1-2.
If a prisoner brings a civil action IFP, the prisoner is still required to pay the full amount of the filing fee. 28 U.S.C. § 1915(b)(1). The court will assess and collect (when funds exist) an initial partial filing fee that is calculated as 20 percent of the greater of the average monthly deposits or the average monthly balance for the six-month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1)(A)-(B). After the initial partial filing fee is paid, the prisoner is required to make monthly payments equal to 20 percent of the preceding month's income credited to the prisoner's account. 28 U.S.C. § 1915(b)(2). The agency that has custody of the prisoner will forward payments from the prisoner's account to the court clerk each time the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2).
In his second IFP application, Plaintiff's certified account statement indicates that his average monthly balance for the last six months was $1.34, and his average monthly deposits were $25.00.
Plaintiff's second application to proceed IFP (ECF No. 5) should be granted. Plaintiff is required to pay an initial partial filing fee in the amount of $5 (20 percent of $25). Thereafter, whenever his prison account exceeds $10, he must make monthly payments in the amount of 20 percent of the preceding month's income credited to his account until the $350 filing fee is paid.
Plaintiff's first IFP application (ECF No. 1) should be denied as moot.
Under the statute governing IFP proceedings, “the court shall dismiss the case at any time if the court determines that-- (A) the allegation of poverty is untrue; or (B) 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 a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii).
In addition, under 28 U.S.C. § 1915A, “[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). In conducting this review, the court “shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2).
Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) track that language. As such, when reviewing the adequacy of a complaint under these statutes, the court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted).
The court must accept as true the allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation omitted).
A complaint must contain more than a “formulaic recitation of the elements of a cause of action,” it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more than a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A dismissal should not be without leave to amend unless it is clear from the face of the complaint that the action is frivolous and could not be amended to state a federal claim, or the district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).
Preliminarily, since Plaintiff has filed a proposed FAC, the original complaint (ECF No. 1-1) should be dismissed as moot.
In the proposed FAC, Plaintiff names as defendants the Reno Police Department, Reno Police Department Officer Sanchez, Tyler Alton of the Washoe County District Attorney's Office, Washoe County/the Washoe County Jail, and Judge Clifton.
Plaintiff alleges that on July 27, 2022, he was approached by Reno Police Department Officer Sanchez and three unnamed officers. There was a Hispanic civilian at the scene. Plaintiff was going to give this man $40 for his H.P. laptop. Before he could go into his pocket to reach for the money to buy the laptop, guns were drawn to Plaintiff's head. Sanchez asked Plaintiff what he was doing there. Plaintiff explained he was buying a laptop and was headed to work, and Sanchez placed him in handcuffs. Plaintiff was detained for another 45 minutes, and Plaintiff overheard Sanchez say that he had a fugitive-at-large warrant out of San Diego (for Plaintiff). Sanchez asked Plaintiff if he had ID, and Plaintiff replied that he did. Sanchez asked if he could go into Plaintiff's back pocket to get his wallet. Plaintiff said only to get his wallet. Sanchez then said he was going to go into Plaintiff's pockets, and Plaintiff yelled that is an illegal search and asked for a lawyer. While searching Plaintiff prior to putting him in the car, Sanchez found “personal use paraphernalia.” Sanchez put Plaintiff into the back of his car and did not read Plaintiff his Miranda rights. Nor did he ever tell Plaintiff why he was stopped. Plaintiff asserts that there was no probable cause for his arrest and detention.
While in the car, Sanchez told Plaintiff he had a fugitive warrant (for Plaintiff) from Oakland, California. Plaintiff avers that he subsequently found out there was no fugitive warrant for his arrest. Plaintiff was transported to WCDF.
Plaintiff alleges that Judge Clifton violated his due process rights because he was not given the option for speedy preliminary rights. Plaintiff goes on to allege that Deputy District Attorney Tyler Alton brought up a case from 1998, and Plaintiff asked if he could say something for the record, and Judge Clifton put his court date off for 60 days.
Next, Plaintiff avers that he was placed in solitary confinement from July 27, 2022, until August 17, 2022, and the toilet only had one flush per 30 minutes.
Plaintiff mentions that he received mail from the U.S. District Court on September 23, 2022, and he had 30 days...
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