Wright v. City of Las Vegas, Nevada

• Decision Date: 12 October 2005
• Docket Number: No. 4:05-CV-00143.,4:05-CV-00143.
• Citation: 395 F.Supp.2d 789
• Parties: Calvin Orin WRIGHT, Plaintiff, v. CITY OF LAS VEGAS, Nevada; Las Vegas Mayor's Office; and Oscar Goodman, Mayor Defendants.
• Court: U.S. District Court — Southern District of Iowa

395 F.Supp.2d 789

Calvin Orin WRIGHT, Plaintiff, v. CITY OF LAS VEGAS, Nevada; Las Vegas Mayor's Office; and Oscar Goodman, Mayor Defendants.

No. 4:05-CV-00143.

United States District Court, S.D. Iowa, Central Division.

October 12, 2005.

COPYRIGHT MATERIAL OMITTED

Calvin O. Wright, Des Moines, IA, pro se.

Bruce E. Bergman, Des Moines City Attorney, Lawrence P. McLellan, Sullivan & Ward, PC, Des Moines, IA, Philip R. Byrnes, William P. Henry, Las Vegas City Attorneys Office, Las Vegas, NV, for Defendants.

ORDER

GRITZNER, District Judge.

This matter comes before the Court on Defendants' Motions to Dismiss (Clerk's Nos. 5, 10, and 20). Plaintiff Calvin O. Wright appears pro se. Defendants City of Las Vegas, the Las Vegas Mayor's Office, and Mayor Oscar Goodman in his official capacity are represented by William P. Henry, Philip R. Byrnes, and Bruce E. Bergman. Lawrence P. McLellan represents Goodman in his personal capacity. No party has requested a hearing, and none is necessary to resolve the pending motions as they present questions of law on the basis of the pleadings and motions. The matter is fully submitted and is ready for disposition.

FACTS

In January 2005, Calvin Wright decided to write a narrative about his participation in a Texas Hold `em poker game played in October 1980 in a federal prison in Leavenworth, Kansas, while he was serving time there. In addition to Wright, fellow inmate Jimmy Chagra, then a client of Defendant Oscar Goodman, participated in the game. Wright claims Goodman, now the Mayor of Las Vegas, holds moneys totaling $500,000 to be paid to the game's winner.¹

In a February 2, 2005, letter sent to Goodman, Wright demanded Goodman arrange a $75,000 loan for Wright. As collateral, Wright offered a 10 percent ownership interest in the narrative. If Goodman exercised an option to dismiss the loan as fully paid within thirty days of Wright's receipt of the money, Wright would allow Goodman to edit his name "where it may occur prior to marketing production" for the book. Wright also demanded Goodman arrange for Wright to be placed on payroll as a research and development consultant.

On February 15, 2005, Wright listened to a message on his answering machine from Chagra. Using a number with a Georgia area code, Wright returned Chagra's call. He learned Goodman had given Chagra Wright's number. Wright placed three subsequent calls to Chagra between February 18, 2005, and March 2, 2005. During their March 2, 2005, exchange, Wright contends he told Chagra he was filing for copyright protection on his book.² Wright claims Chagra told him he should reconsider writing his story, or Goodman might have Wright or his family hurt "or worse." Chagra reminded Wright that Goodman is a person with "a lot of power, a lot of clout, and that [Goodman] knew many well connected people." According to Wright, Chagra said he was speaking for Goodman. Wright then agreed to abandon writing his narrative.

Wright has also sent a number of letters to Goodman, which were unanswered. He also made a number of telephone calls to Goodman's secretary, which remain unreturned.

Wright commenced this section 1983³ action by filing a Complaint on March 14 2005. He amended his Complaint on March 18, 2005.⁴ As Defendants, he named Goodman in his official and personal capacities, the City of Las Vegas (the City), and the Las Vegas Mayor's Office (Mayor's Office). Wright claims Goodman violated his First Amendment rights by conspiring with Chagra to threaten him, forcing him to abandon writing his story.

Wright used a process server to effect service upon Defendants. An affidavit by the process server indicates he served a summons, the Complaint, and the Amended Complaint upon a Las Vegas city attorney on May 3, 2005. Although Wright mailed copies of his pleadings to Goodman, nothing indicates Goodman has been personally served with these documents.

The City, the Mayor's Office, and Goodman, acting in his official capacity, have filed a motion to dismiss, alleging Wright has failed to state a claim upon which relief can be granted. The City and Goodman, acting in his official capacity, have moved to dismiss for improper service of process. Finally, Goodman, acting in his personal capacity, has filed a motion to dismiss, alleging defects in personal jurisdiction, venue, and service of process. Wright resists all three motions.

DISCUSSION

The Court has a duty to liberally construe the pleadings of a pro se litigant. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Price v. Moody, 677 F.2d 676, 677 (8th Cir.1982). A motion to dismiss is only proper where "it appears without doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Price, 677 F.2d at 677. In the present posture, Wright enjoys a presumption that all factual allegations in his complaint are true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); accord Price, 677 F.2d at 677. Nevertheless, his "complaint must contain facts which state a claim as a matter of law and must not be conclusory." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995) (citing Davis v. Hall, 992 F.2d 151, 152 (8th Cir.1993) (per curiam)).

I. Claims Against the Mayor's Office and the City

A. Service of Summons

The City claims dismissal of Wright's claims against it is proper under Federal Rule of Civil Procedure 12(b)(5), because Wright failed to effect proper service upon the City. Wright has attempted to serve the City in two ways: by mailing a copy of his Complaint and the summons to the Mayor's office, and by personally serving an attorney employed by the City.

"`[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.'" Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (quoting Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45, 66 S.Ct. 242, 90 L.Ed. 185 (1946) (alteration by the Omni Capital Court)). Thus, "[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Id.

Federal Rule of Civil Procedure 4(j)(2) sets forth the proper manner of service upon a local government:

Service upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.

Fed.R.Civ.P. 4(j)(2). This rule identifies two ways Wright could successfully effect service. First, he could personally serve the chief executive officer of the City. See id. He has failed to do this. Second, he could serve the City in compliance with Nevada law. See id.

Nevada Rule of Civil Procedure 4(d)(5) sets forth the proper manner to effect service upon a local government in the State of Nevada. See Nev. R. Civ. P. 4(d)(5). That rule provides as follows:

Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows: ... If against a county, city, or town, to the chairperson of the board of commissioners, president of the council or trustees, mayor of the city, or other head of the legislative department thereof.

Nev. R. Civ. P. 4(d)(5). Nevada law also allows service "upon the clerk or secretary of [a] political subdivision, corporation or agency" if the entity is capable of being sued. Nev.Rev.Stat. § 12.105 (2004). Wright has mailed a copy of the complaint and summons to the Mayor's office, but service by mail is not authorized under either Federal Rule of Civil Procedure 4 or Nevada law in an action against a municipality. See Fed.R.Civ.P. 4(d) (restricting service by mail to situations arising under rules 4(e), 4(f), and 4(h)); Nev.Rev.Stat. 12.105; Nev. R. Civ. P. 4(d)(5). Wright has served a City attorney, but such an individual is not among those upon which effective service may be made. Thus, Wright's service attempts with respect to his action against the City have been ineffective.

When ineffective service has occurred, a court "`has discretion to either dismiss the action, or quash service but retain the case.'" Marshall v. Warwick, 155 F.3d 1027, 1032 (8th Cir.1998) (quoting Haley v. Simmons, 529 F.2d 78, 78 (8th Cir.1976) (per curiam)). In light of the fact that Wright has failed to state a claim against the City, see infra, dismissal is proper here.

B. Substantive Claims

In Nevada, political subdivisions may be sued; departments of political subdivisions may not. See Nev.Rev.Stat. § 41.031(1)-(2) (2004). Political subdivisions include,

an organization that was officially designated as a community action agency pursuant to 42 U.S.C. § 2790 before that section was repealed and is included in the definition of an "eligible entity" pursuant to 42 U.S.C. § 9902, the Nevada Rural Housing Authority, an airport authority created by special act of the Legislature, a regional transportation commission and a fire protection district irrigation district, school district, governing body of a charter school, any other special district that performs a governmental function, even though it does not exercise general governmental powers, and the governing body of a university school for profoundly gifted pupils.

Id. § 41.0305, amended by 2005 Nev. Laws ch. 481, § 20. Of the types of governmental entities listed as political subdivisions, mayors' offices (or analogical entities) are not among them. See id. Citing Wayment v. Holmes, 112 Nev. 232, 912 P.2d 816 (1996), the Mayor's...