Rean v. City Of Las Vegas

• Decision Date: 30 November 2010
• Docket Number: No. : 2:10-cv-01094-RLH-RJJ,: 2:10-cv-01094-RLH-RJJ
• Parties: ROBERT R. REAN, #70571-65 Plaintiff, v. CITY OF LAS VEGAS, et al., Defendants.
• Court: U.S. District Court — District of Nevada

ROBERT R. REAN, #70571-65 Plaintiff,

v.CITY OF LAS VEGAS, et al., Defendants.

No. : 2:10-cv-01094-RLH-RJJ

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

DATED: November 30, 2010

ORDER

This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff's application to proceed in forma pauperis is granted (docket #1). The court now reviews the complaint.

I. Screening Standard

Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a prisoner's claims, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious," "fails to state a claim on which relief may be granted," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9^th Cir. 1989).

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 the court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). 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, 127 S. Ct. 1955, 1965 (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. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All or part of a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right." Hydrick v. Hunter, 466 F.3d 676, 689 (9^th Cir. 2006).

II. Instant Complaint

Plaintiff, who is incarcerated at Victorville Federal Correctional Center in Adelanto, California, has sued Clark County, Clark County Sheriff Douglas Gillespie, Clark County Detention Center ("CCDC") Chief of Detention Dixon, Las Vegas Municipal Police Department ("LVMPD") officers Bradley Arb, Albright, J. Seem, Robert Foster, T. Olson, Sgt. Rocco Lepore, Sgt. Washington, Sgt. Judd, Doe "LVMPD SERT team members," Clark County Deputy District Attorney D.A. Sweetin and District Judge David Barker. Plaintiff asserts violations of his Fourteenth Amendment due process rights and his right to access the courts.

First, in each count set forth by plaintiff, he also claims that Clark County, Sheriff Gillespie and Chief Dixon failed to adequately hire, train and supervise defendant LVMPD officers. However, "[l]iability under [§] 1983 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for the constitutional violations of... subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under [§] 1983." Taylor v. List, 880 F.2d 1040, 1045 (9^th Cir. 1989) (citations omitted); see also Hydrick v. Hunter, 500 F.3d 978, 988 (9^th Cir. 2007); Ortez v. Washington County, State of Or., 88 F.3d 804, 809 (9^th Cir. 1996) (proper to dismiss where no allegations of knowledge of or participation in alleged violation). Plaintiff does not allege that these three defendants had knowledge of, directed or participated in any alleged civil rights violation. Clark County, Sheriff Gillespie, and Chief Dixon are dismissed from this action.

Next, plaintiff names as defendants a district attorney as well as a state district court judge. Not only does he fail to set forth any allegations against these defendants, but they are immune from suit on the bases of judicial and prosecutorial immunity. With respect to judges: "[c]ourts have extended absolute judicial immunity from damage actions under 42 U.S.C. § 1983 not only to judges but also to officers whose functions bear a close association to the judicial process." Demoran v. Will, 781 F.2d 155, 156 (9^th Cir. 1986). "Judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities." Ashelman v. Pope, 793 F.2d 1072, 1075 (9^th Cir. 1986) (en banc); see also Miller v. Davis, 1142, 1145 (9^th Cir. 2008); Partington v. Gedan, 961 F.2d 852, 860 n.8 (9^th Cir. 1992); Houghton v. Osborne, 834 F.2d 745, 750 (9^th Cir. 1987). Prosecutorial immunity protects eligible government officials when they are acting pursuant to their official role as advocate for the State performing functions "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Kalina v. Fletcher, 522 U.S. 118, 124-26 (1997); Botello v. Gammick, 413 F.3d 971, 975 (9^th Cir. 2005); Genzler v. Longanbach, 410 F.3d 630, 636-37 (9^th Cir. 2005); KRL v. Moore, 384 F.3d 1105, 1110 (9^th Cir. 2004); Broam v. Bogan, 320 F.3d 1023, 1028 (9^th Cir. 2003). State prosecutors are entitled to absolute prosecutorial immunity for acts taken in their official capacity. See Kalina v. Fletcher, 522 U.S. 118, 123-25 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993); Imbler, 424 U.S. at 427, 43031; Botello, 413 F.3d at 975; Genzler, 410 F.3d at 636; KRL, 384 F.3d at 1110; Broam, 320 F.3d at 1028. Accordingly, defendants Sweetin and Barker are dismissed from this action.

A. Count I

With respect to his Fourteenth Amendment due process claims, plaintiff alleges the following: that when he was booked into CCDC in April 2010, officer Arb conducted his intake interview and informed him that he would be housed in the general population. Shortly thereafter, Jane Doe officer sought to photograph plaintiff's tattoos, but plaintiff "declined to remove his clothing to allow semi-nude photos [to be] taken of his body" and told officers he would only agree to the photos if they had a court order. Plaintiff was then taken to a housing unit. He learned after a few weeks of restrictive conditions that he had been reclassified as maximum security for refusing to let officers photograph his tattoos. Plaintiff wrote inmate requests and grievances and officer Foster responded that until officers can photograph his tattoos in order to determine whether they are gang-related, he would remain in the maximum security unit. Officers Albright, Shelby, Lepore, J. Seem were involved in subsequent interviews and responded to various grievances, without result. Plaintiff claims that he was reclassified as maximum security without due process in violation of his Fourteenth Amendment rights.

A prison regulation creates a liberty interest deserving protection under the Fourteenth Amendment's due process clause only when the deprivation in question (1) restrains the inmate's freedom in a manner not expected from his or her sentence; and (2) "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84 (1995); see also Myron v. Terhune, 476 F.3d 716, 718 (9^th Cir. 2007).

Examining plaintiff's tattoos in order to ascertain whether he may be affiliated with a gang and thus be a member of a security threat group is eminently reasonably related to the legitimate penological interests of ensuring safety and maintaining order in the prison. Neither did the imposition of maximum security classification impose an atypical and significant hardship on plaintiff in relation to the ordinary incidents of prison life. Plaintiff gave defendants no option but to classify him as maximum security by refusing to allow defendants to examine his tattoos in order to determine whether they suggest gang affiliations. Plaintiff fails to state a Fourteenth Amendment claim for which relief may be granted.

Plaintiff also asserts a claim under the Due Process Clause of the Fifth Amendment. The procedural guarantees of the Fifth and Fourteenth Amendment's Due Process Clause apply only when a constitutionally protected liberty or property interest is at stake. See Ingraham v. Wright, 430 U.S. 651, 672-73 (1977); Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972)....