Opinion
2:21-cv-00704-APG-NJK
06-08-2021
MR. CLAYTON M. BERNARD-EX, Plaintiff, v. DEANNA MOLINAR, Defendant.
REPORT AND RECOMMENDATION [DOCKET NOS. 10, 11]
NANCY J. KOPPE, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is proceeding pro se in this action pursuant to 28 U.S.C. § 1915. On April 29, 2021, Plaintiff filed an application to proceed in forma pauperis and submitted a complaint. Docket Nos. 1, 1-1. On May 3, 2021, the Court granted Plaintiff's application to proceed in forma pauperis. Docket No. 8. The Court also screened Plaintiff's complaint and dismissed it with leave to amend if Plaintiff could correct certain deficiencies. Id. at 3-5. Now pending before the Court is Plaintiff's amended complaint. Docket Nos. 10, 11 (corrected image). The Court will now screen Plaintiff's amended complaint.
I. BACKGROUND
When the Court screened Plaintiff's complaint, Docket No. 1-1, it found that the allegations in Plaintiff's complaint were frivolous and failed to state a claim upon which relief may be granted. Docket No. 8 at 3. Nonetheless, the Court permitted Plaintiff the opportunity to cure the noted deficiencies and file an amended complaint, no later than June 1, 2021. Id. at 4. The Court cautioned Plaintiff that his amended complaint must sufficiently allege each claim and the involvement of each defendant without reference to his original complaint. Id. On May 4, 2021, Plaintiff filed the instant amended complaint. Docket Nos. 10, 11 (corrected image).
II. LEGAL STANDARD
Upon granting an application to proceed in forma pauperis, courts screen the complaint. 28 U.S.C. § 1915(e). Section 1915(e) permits courts to dismiss a case if the action is legally “frivolous or malicious, ” the complaint fails to state a claim upon which relief may be granted, or the plaintiff 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, 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. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Fed. R. Civ. P. 12(b)(6) provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Fed.R.Civ.P. 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 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); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Fed.R.Civ.P. 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, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Courts must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. Additionally, where the claims in the complaint have not crossed the line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570.
Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required after Twombly and Iqbal). “However, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
III. ANALYSIS
Plaintiff asserts claims against Defendant Deanna Molinar, a public defender. Docket No. 11 at 1. Plaintiff alleges that Defendant engaged in racial discrimination, collusion, slander, infringement, and false imprisonment. Id. at 2. Plaintiff further alleges that “this Court should grant this complaint because Plaintiff is protected from suit by the doctrine of diplomatic immunity.” Id. at 3. The Court finds that Plaintiff's allegations are frivolous, conclusory, and fail to state a claim upon which relief may be granted. See Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them”).
Although the instant complaint does not identify Defendant as a public defender, it alleges that she “refused to terminate her representation.” Docket No. 11 at 4. In addition, Plaintiff previously identified Defendant as a public defender. See Docket No. 1-1 at 3, 7; see also McKenna v. WhisperText, 2015 WL 5264750, at *3 & n.32 (N.D. Cal. Sept. 9, 2015) (collecting cases that courts may consider allegations made in prior pleadings).
Plaintiff alleges that Defendant “violated [his] civil rights by racial discrimination” and “coerced and colluded to unlawfully imprison [him] by using concocted stories, false information and racial discrimination practices.” Docket No. 11 at 3. Plaintiff further alleges that Defendant “colluded with others to cover up kidnapping by LVMPD” and that he “was injured by [Defendant's] submission of a false claim.” Id. at 3, 4. A public defender is not immune from liability under § 1983 if she “conspired with state officials to deprive the § 1983 plaintiff of federal constitutional rights”. Tower v. Glover, 467 U.S. 914, 916 (1984). Absent from Plaintiff's amended complaint, however, are any allegations explaining the nature of the conspiracy. See Downs v. Baca, 2010 WL 3171025, at *4 (D. Nev. Aug. 11, 2010) (“Conclusory allegations are insufficient to state a claim for conspiracy”). Plaintiff also fails to allege sufficient facts establishing the violation of a particular federal constitutional right. See Thomas v. Row Casinos, 2019 WL 7340505, at *2 (D. Nev. Dec. 13, 2019) (citing Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)) (“To adequately plead the section 1983 elements, a complaint must identify what constitutional rights each defendant violated, and provide sufficient facts to plausibly support each violation”). Further, Plaintiff fails to allege that Defendant's conduct fell outside the traditional functions of a public defender; as a result, no basis exists for the Court to find that Defendant acted under color of state law for the purpose of § 1983 liability. See Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)) (“To state a claim under § 1983, a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law”); see also Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (“With respect to . . . § 1983 claims . . . we decide only that a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding”). Having failed to allege sufficient facts establishing that Defendant acted under color of state law, Defendant cannot be found liable under § 1983. See Stringer v. Woolsey, 2010 WL 4386963, at *6 n.1 (D. Nev. Sept. 21, 2010) (“[A] public defender can be sued under § 1983 if . . . she conspired with a state actor, even if the state actor is immune from § 1983 liability. However, here, Plaintiff has not alleged facts to suggest such a conspiracy”).
Plaintiff further alleges, without elaboration, that Defendant “committed illegal and fraudulent activity” and “was involved in the fraud of White privilege and colluded and conspired with LVMPD to commit racial discrimination and civil rights violation(s) against [him].” Docket No. 11 at 4. As Plaintiff fails to state the circumstances constituting the alleged fraud, his claim fails. See Neubronner v. Milken, 6 F.3d 666, 669 n.4 (9th Cir. 1993) (quoting Fed.R.Civ.P. 9(b)) (emphasis in original) (“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity”). Further, Plaintiff makes a conclusory allegation, again without elaboration, that Defendant violated his diplomatic immunity rights and “trademark infringed on the name Clayton Bernard.” Docket No. 11 at 4, 5. This conclusory allegation also fails to state a claim.
In light of Plaintiff's failure to cure the deficiencies in his amended complaint and the frivolous nature of the allegations therein, the Court finds that the instant complaint is without merit, does not cross the line from conceivable to plausible, and that future amendment would be futile.
IV. CONCLUSION
Accordingly, IT IS RECOMMENDED that Plaintiffs amended complaint be dismissed and that this case be closed without prejudice to Plaintiff filing a new complaint in a new case.