Montgomery v. Las Vegas Metro. Police Dep't
| Decision Date | 28 September 2012 |
| Docket Number | Case No. 2:11-cv-02079-MMD-PAL |
| Parties | BOBBY LEE MONTGOMERY, Plaintiff, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendant. |
| Court | U.S. District Court — District of Nevada |
(IFP App - Dkt. #1)
This matter is before the court on Plaintiff Bobby Lee Montgomery's Application to Proceed In Forma Pauperis (Dkt. #3). Plaintiff is proceeding in this action pro se. Previously, Plaintiff submitted an incomplete Application to Proceed In Forma Pauperis, and the court denied it without prejudice, allowing Plaintiff to complete a new application. Plaintiff has now submitted a new application, and it appears Plaintiff qualifies to proceed in forma pauperis. The court will now screen Plaintiff's Complaint pursuant to 28 U.S.C. § 1915.
Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially aruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). A properly pled 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). Although 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, 129 S.Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 1949. Secondly, where the claims in the complaint have not crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570.
Count One of Plaintiff's Complaint alleges that on January 5, 2010, he was illegally arrested without a warrant for domestic violence by Defendants K. Kartchner, L. Coates, and M. Ruiz, all of whom are Las Vegas Metropolitan Police Department ("LVMPD") officers (the "LVMPD Defendants"). He asserts that the arresting officers were in plainclothes, and arrested Plaintiff at gunpoint without a warrant. Plaintiff contends he was walking through a parking lot when he was arrested, unarmed, posed no threat to the officers' safety, and did not attempt to flee from the LVMPD Defendants. Plaintiff asserts he was imminently afraid of being "shot and kill[ed] by [a] hired assassin" of the LVMPD. Complaint at 6. He contends he suffered emotional distress from "the fright of being shot, the shock of being killed for no reason hard to [bear]." Id.
In Count Two, Plaintiff alleges the Clark County District Attorney's Office maliciously prosecuted him "for a purpose other than proper adjudication." Complaint at 7. Plaintiff names as Defendants former Clark County District Attorney David Roger and various Assistant District Attorneys in that office, but he does not allege any specific facts against any of these Defendants. He alleges that after his arrest, he was charged in a criminal complaint with one count of Battery Constituting Domestic Violence (Strangulation) and one count of Battery Constituting Domestic Violence on January 7, 2010. The case was dismissed, and the District Attorney's Office filed a newcriminal complaint on January 25, 2010, charging Plaintiff with one count of Battery Constituting Domestic Violence. The second case was dismissed on November 15, 2010.1 Plaintiff contends he had no notice of the DA's intent to prosecute him although he admits to having been arrested and detained in the Clark County Detention Center at the time on these charges. He contends the malicious prosecution caused him mental and emotional distress because he lost his home, personal property, and his "way of life." Id.
Finally, Plaintiff asserts that Defendant Oscar Goodman, the former mayor of Las Vegas, and Defendant Douglas Gillespie, and Defendant City Council of Clark County, Nevada, "support" LVMPD, but he makes no other specific factual allegations concerning these Defendants. Plaintiff seeks $100,000.00 for each of the twenty-nine days he was incarcerated in the Clark County Detention Center as well as exemplary and punitive damages in the amount of $870,000.00, and future and special damages for his medical and psychiatric care.
The complaint was filed on the court's form civil rights complaint pursuant to 42 U.S.C. § 1983. To state a claim under section 1983, a plaintiff must allege that a right secured by the Constitution has been violated, and the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42 (1988) (citation omitted).
The Complaint attempts to state official capacity claims against the LVMPD Defendants. As a general matter, state officers sued in their official capacity are not "persons" for the purposes of a section 1983 action, and normally, they may not be sued under the statute. Aguou v. Commonwealth Ports Auth., 316 F.3d 899, 901 (9th Cir. 2003). Official capacity claims filed against state officials are merely an alternative way of pleading a claim against the entity for which the defendant is an officer. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Holley v. Cal. Dep't of Corr., 599 F.3d 1108, 1111 (9th Cir.2010) (). In an official capacity claim, a plaintiff must demonstrate that a policy or custom of the governmental entity for which the official is an agent was the moving force behind the violation. See Hafer, 502 U.S. at 25; Kentucky v. Graham, 473 U.S. 159, 165 (1985). Plaintiff has not alleged that any particular statement, ordinance, regulation, decision or custom exists that violates his constitutional rights. As a result, Plaintiff's official capacity claims against the LVMPD Defendants will be dismissed with leave to amend.
Plaintiff's claims against Defendants Goodman and Gillespie are claims against municipal officers in their official capacities. Municipal government officials are persons for purposes of § 1983. Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 691 n.55 (1978). Municipal officers may be sued in their official capacities, but the plaintiff must prove that any constitutional violations occurred as a result of an official policy or custom or from a failure to train municipal employees adequately. Id. at 690; City of Canton v. Harris, 489 U.S. 378, 388-91 (1989). Plaintiff contends Defendants Goodman and Gillespie "support" LVMPD. This conclusory statement does not state a claim on which relief may be granted. Plaintiff has not alleged that any particular statement, ordinance, regulation, decision or custom exists that violates his constitutional rights. As a result, Plaintiff's claims against Defendants Goodman and Gillespie will be dismissed, with leave to amend.
Municipalities and other local government units-such as Defendant City Council-are "persons" for purposes of § 1983. In order to state a claim against a local government, a plaintiff must allege there is "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or for a "governmental 'custom' even though such a custom has not received formal approval through the body's official decision[-]making channels." Monell, 436 U.S. at 690-91. Plaintiff contends the City Council "support[s]" LVMPD. This conclusory statement does not state aclaim for relief. Plaintiff has not alleged that any particular statement, ordinance, regulation, decision or custom exists that violates his constitutional rights. As a result, Plaintiff's claims against the City Council will be dismissed with leave to amend.
Plaintiff attempts to state a malicious prosecution claim against former District Attorney David Roger and Assistant District Attorneys Schifalcqua, Morgan, Nance, Clowers, Sedlock, Westmeye, and Barrie (the "DA Defendants"). The Ninth Circuit has held that a malicious prosecution claim is not cognizable under 42 U.S.C. § 1983 if process is available within a state's judicial system to provide a remedy. See Usher v. City of Los Angeles, 828 F.2d 556, 561-62 (9th Cir. 1987) (citing Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985) (en banc)). An exception to this rule exists when a malicious prosecution is conducted with the intent to deprive a person of equal protection of the law or is otherwise intended to deny a person his or her constitutional rights. Id. at 562 (internal citations omitted); see also Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (...
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