Wheeler v. Marshals Police Department gov

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * Antonio Wheeler, Case No. 2:24-cv-00788-BNW 5 Plaintiff, SCREENING ORDER 6 v. Marshals Police Department, et al., 8 Defendants.

10 Pro se litigant Antonio Wheeler brings this civil-rights case under 42 U.S.C. § 1983 for events that occurred at the Freemont Street Experience culminating in his arrest. ECF No. 1-1. He submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to prepay fees and costs or give security for them. ECF No. 1. His request to proceed in forma pauperis therefore will be granted. The court now screens his complaint as required by 28 U.S.C. § 1915(e)(2).

15 I. ANALYSIS 16 A. Screening standard for pro se prisoner claims 17 Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. P. 12(b)(6). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege “(1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Williams v. California, 764 F.3d 1002, 1009 (9th Cir. 2014) (quotation omitted).

1 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 3 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

9 In considering whether the complaint states a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding the complaint’s deficiencies.

17 Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

18 B. Screening the amended complaint 19 Mr. Wheeler alleges he had a performer pass for Freemont Street. He contends the City Marshall and security personnel from Freemont Street approached him and told him to sing a different song. The articulated reason for that request was that Mr. Wheeler was inciting a riot. At some point, the Marshall asked Mr. Wheeler for his identification, and, in turn, Mr. Wheeler asked to speak to a supervisor. At that point, Mr. Wheeler explains they “ran [his] name” and arrested him. He believes he was arrested “for not registering,” but maintains he had done so. He explains he pled “no contest” in the ensuing criminal case.

26 Mr. Wheeler brings claims under the First, Second, Fourth, and Fourteenth Amendments.

27 / / 1 1. First and Fourth Amendment claims 2 A successful civil-rights action that would necessarily imply the invalidity of the plaintiff’s conviction or sentence must be dismissed unless the plaintiff first shows that the conviction or sentence has been reversed, expunged, declared invalid, or called into question by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477 (1994).

6 It is not clear here whether prevailing on these two claims would necessarily imply the invalidity of his conviction.

8 Starting with the Fourth Amendment claim, it appears Plaintiff is alleging he was stopped/detained/arrested without probable cause. But prevailing on that claim may imply the invalidity of his conviction.

11 Similarly, Plaintiff seems to claim he was arrested in retaliation for exercising his freedom of speech. Prevailing on this retaliatory-arrest claim could necessarily imply the invalidity of a conviction because a “plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.” Nieves v. Bartlett, 587 U.S. 391, 402 (2019); Hartman v. Moore, 547 U.S. 250, 265 (2006) (explaining that absence of probable cause must be pleaded and proven to support Bivens and § 1983 actions against criminal investigators for inducing prosecution in retaliation for speech); Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008) (“Probable cause is an objective standard. If it exists, any argument that the arrestee’s speech as opposed to her criminal conduct was the motivation for her arrest must fail, no matter how clearly that speech may be protected by the First Amendment.”).

21 As a result, the Court will dismiss these claims without prejudice and with leave to amend.

22 Should Plaintiff choose to amend these claims he must provide the criminal statute to which he entered a plea of “no contest” so that the court can conduct the appropriate analysis.

24 1. Second Amendment 25 It is not apparent from Plaintiff’s complaint how Defendants violated the Second Amendment. The Court will dismiss these claims without prejudice and with leave to amend.

27 Should Plaintiff choose to amend this claim, he must provide a factual basis supporting a 1 2. Fourteenth Amendment 2 To state a claim for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty or property interest for which the protection is sought. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569–70 (1972). “The concept of ‘substantive due process,’ semantically awkward as it may be, forbids the government from depriving a person of life, liberty, or property in such a way that ‘shocks the conscience’ or ‘interferes with rights implicit in the concept of ordered liberty.’” Nunez v. City of L.A., 147 F.3d 867, 871 (9th Cir. 1993). Given Plaintiff’s basis for this claim is not clear, the Court will dismiss this claim with leave to amend. Should Plaintiff choose to amend this claim, he must provide a factual basis supporting the specific theory under which he alleges the Fourteenth Amendment was violated.

11 3. Instructions for amendment 12 If Plaintiff chooses to file an amended complaint, he is advised all defendants must be identified in the caption of the pleading and that he must specify which claims he is alleging against which defendants. Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, Plaintiff still must give defendants fair notice of each of the claims he is alleging against each defendant. Specifically, he must allege facts showing how each named defendant is involved and the approximate dates of their involvement.

18 Plaintiff is further advised that if he files an amended complaint, the original complaint (ECF No. 1-1) will no longer serve any function in this case. As such, if he files an amended complaint, each claim and the involvement of each defendant must be alleged sufficiently. The court cannot refer to a prior pleading or to other documents to make his amended complaint complete. The amended complaint must be complete in and of itself without reference to prior pleadings or to other documents.

24 C. CONCLUSION AND RECOMMENDATIONS 25 IT IS ORDERED that Plaintiff ’s Motion to Proceed in Forma Pauperis (ECF No.1.) is GRANTED.

27 IT IS FURTHER ORDERED that the clerk of court must detach and file Plaintiff’s 1 IT IS RECOMMENDED that the complaint be dismissed with leave to amend. The || deadline to amend the complaint will be March 3, 2025.

3 IT IS FURTHER ORDERED that the clerk of court must send Plaintiff the approved || form for filing a § 1983 complaint, instructions for the same, and a courtesy copy of his complaint || (ECF No. 1-1).

6 NOTICE 7 This report and recommendation is submitted to the United States district judge assigned || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation || may file a written objection supported by points and authorities within fourteen days of being || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely || objection may waive the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 12 |} 1153, 1157 (9th Cir. 1991).

14 DATED: January 31, 2025 17 mettre pects 8 UNITED STATES MAGISTRATE JUDGE