3:18-cv-00374-MMD-CBC (D. Nev. Feb. 22, 2019)





Before the court is Plaintiffs' Jared and Joann Spottedbear's (collectively referred to as "Plaintiffs") application to proceed in forma pauperis (ECF No. 1) and their pro se complaint. (ECF No. 1-1). Having thoroughly reviewed the record, the Court recommends that the application to proceed in forma pauperis be granted. Furthermore, the Court recommends that the Complaint be dismissed with prejudice and without leave to amend as to the following Defendants: the Reno Justice Court, the Second Judicial District Court, Washoe County Sheriff's Office, Facebook, and Tinder. Finally, the Court recommends that the Complaint be dismissed without prejudice and with leave to amend as to Defendants Washoe County Sheriff's Office, Sean Sheahan and Monique Settwongse for the reasons stated below. I. IN FORMA PAUPERIS APPLICATION

This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. This action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4.

Based on the financial information provided with Plaintiffs' application to proceed in forma pauperis, the Court finds that Plaintiffs are unable to pay the filing fee in this matter. (ECF No. 1). Accordingly, the Court grants Plaintiffs' application to proceed in forma pauperis.


Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint pursuant to 28 U.S.C. §1915. Specifically, federal courts are given the authority to dismiss a case if the action "(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). 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 this Court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint See Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). When the Court reviews a complaint under this standard, it accepts as true all the plaintiff's allegations and construes the complaint in the light most favorable to the plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). The Court takes particular care when reviewing the pleadings of a pro se party. In this instance, a more forgiving standard applies to litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). This Court is to "construe pro se filings liberally . . . and to 'afford the petitioner the benefit of any doubt.'" Id.

Although the standard is broad, it is not limitless. Despite the leniency afforded to pro se plaintiffs, the Court need not accept as true conclusory allegations, unwarranted deductions, or unreasonable inferences. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004). Further, the 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, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Stated differently, the complaint must allege sufficient facts to state a claim "that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555). ///


The Court takes the facts from Plaintiffs' complaint as true and has discerned the substance of the complaint as best possible. Plaintiffs' complaint appears to name the following defendants: Sean Sheahan, Monique Settwongse, the Reno Justice Court, Tinder Adult Site, Facebook Website, Washoe County Sheriff's Office, and the Second Judicial District Court (collectively referred to as "Defendants"). Plaintiffs allege that officers illegally took DNA from Jared Spottedbear and held him for seventy-two (72) hours on three separate occasions with no evidence. (ECF No. 1-1 at 1-4.) Additionally, according to Plaintiffs, Officer Sheahan abused the Patriot Act as it relates to domestic terrorists. (Id. at 5.) Finally, Joann Spottedbear alleged she was denied access to her son, Jared Spottedbear's, discovery in violation of the treaty of 1851. (Id. at 6.)

The Court construes this defendant as referring to Tinder, Inc. the owners and creators of Tinder, an online dating platform.

The complaint, however, is devoid of facts that specifically link or identify what actions were taken by each named defendant that specifically relate to any identified constitutional right that was violated.

A. Legal Standard for Section 1983 Claims

42 U.S.C. § 1983 creates a path for the private enforcement of substantive rights created by the Constitution and Federal Statutes. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In order to state a claim under § 1983, a plaintiff must show: (1) that he suffered a violation of rights protected by the Constitution or created by federal statute; and, (2) that the violation was proximately caused by a person acting under color of state or federal law. See West v. Atkins, 487 U.S. 42, 48-49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).

The statute requires there be an affirmative link or connection between the actions of the defendant and the plaintiff's alleged deprivation. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); see also Lakeside-Scott v. Multnomah County, 556 F.3d 797, 812 (9th Cir. 2009) (quotation omitted).

B. Reno Justice Court and the Second Judicial District Court are Not Proper Defendants

Under the Eleventh Amendment, a state or its agencies cannot be sued without their consent. P.R. Aqueduct & Sewer Auth. V. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); Beenties v. Placer Cty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005). Nevada has explicitly refused to waive its immunity to suit under the Eleventh Amendment. NRS 41.031(3). State courts are agencies of the state and, as such, are not "persons" subject to suit under 42 U.S.C. § 1983. O'Connor v. State of Nev., 507 F.Supp. 546, 550 (D. Nev. 1981) aff'd, 686 F.2d 749 (9th Cir. 1982). Plaintiffs assert claims against the Reno Justice Court, which is part of the state court, and the Second Judicial District Court. (ECF No. 1-1.) Both entities are part of the state judicial branch. See Nev. Const. art. 6 § 1; see Heckman v. Dodd, 2:11-cv-00480-RLH-LRL, Doc. # 6, at 5 (D. Nev. May 2, 2011). State courts are considered "arms of the state" for purposes of § 1983 claims and are entitled to sovereign immunty. O'Connor, 507 F.Supp. at 550. Therefore, the Court recommends dismissal of Plaintiffs' § 1983 claims against the Reno Justice Court and the Second Judicial District Court with prejudice and without leave to amend, as amendment would be futile. /// ///

C. Tinder and Facebook are Not Proper Defendants

Private conduct—no matter how discriminatory or wrongful—is generally beyond the reach of section 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotation marks omitted); see also Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) ("[S]tate action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). Plaintiffs complaint has listed as defendants both Tinder and Facebook, which are both private corporations - not governmental entities. Plaintiffs do not allege any facts that could support a claim of a "close nexus" between Tinder, Facebook and/or the state, such that Tinder's and/or Facebook's actions (or inaction) may be fairly attributable to the state. In fact, there are no facts or information provided in the complaint that even explain or tie any conduct by Tinder or Facebook to this case whatsoever. As such, there is no state action alleged or that can be attributed to either entity for purposes of § 1983 nor does it appear that any such claim could be made against either entity for any alleged improper conduct that can be discerned from the complaint as written. Therefore, the Court recommends dismissal of Plaintiffs' § 1983 claims against Facebook and Tinder with prejudice and without leave to amend, as amendment would be futile.

D. Section 1983 Linkage Requirement and Failure to Comply with Rule 8

The remaining Defendants are the Washoe County Sheriff's Office, a municipality and individual defendants Sheahan and Settwonges. In order to properly claim an action under section 1983, Plaintiffs must explain or demonstrate how the conditions complained of have resulted in a deprivation of Plaintiffs' constitutional rights. See Ellis v. Cassedy, 625 F.2d 227 (1980). Thus, the complaint must allege how each individually named defendant is involved. In addition, although a municipality may be liable as a "person" under section 1983, such entities cannot be liable under a respondeat superior theory. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). Rather, liability may attach where the constitutional violation was premised on: (1) an official policy; (2) a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity;" (3) the act of an "official whose acts fairly represent official policy such that the challenged action constituted official policy;" or, (4) where "an official with final policy-making authority delegated that authority to, or ratified the decision of, a subordinate." Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008).

As best as the Court can discern from Plaintiffs' complaint, it appears that Plaintiffs have simply listed a group of defendants but fail to explain how each defendant is connected to Plaintiffs' harm. (ECF No. 1.) Plaintiffs fail to distinguish which allegations they were making against which defendant. (ECF No. 1.) In addition, there are no allegations related to any of the necessary requirements for municipal liability to apply in this case. As such, Plaintiffs' complaint is not in compliance with section 1983 linkage requirements, as it does not distinguish each of their claims and factual allegations amongst Defendants or provide facts necessary to establish municipal liability at this time.

Further, Plaintiffs' complaint fails to comply with Rule 8, which calls for a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a), and mandates that "[e]ach averment of a pleading shall be simple, concise, and direct." Fed. R. Civ. P. 8(e)(1). Rule 8(a) expresses the notion of notice-pleading, whereby the pleader is only required to give the opposing party fair notice of a claim. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Thus, Rule 8(a) does not require an elaborate recitation of every fact a plaintiff may rely upon at trial, but only a statement sufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47. Factual allegations with no mention of which Defendants are involved does not meet the specificity requirement. (ECF No 1.) As written, the Court does not see any means for Defendants Washoe County Sheriff's Office, Sheahan and/or Settwongse to decipher which allegations in the complaint Plaintiffs are making against whom.

Except for the brief mention of Sheahan abusing the Patriot Act, none of the Defendants are named throughout the complaint. --------

Plaintiffs' complaint also does not plainly lay out their claims in an organized fashion as required under Rule 8(a). It does not state legal claims supported by facts nor does it concisely separate each claim amongst Defendants Sheahan and Settwongse. (Id.) Thus, as presently drafted, the Court cannot discern what each defendant did that violated Plaintiffs' constitutional rights. Although the Federal Rules of Civil Procedure adopt a flexible pleading standard, Plaintiffs still must give Defendants fair notice of their claims, and of their entitlement to relief. As presently drafted, the complaint fails to provide fair notice to Defendants as required.

However, as pro se litigants, the court believes that Plaintiffs should be permitted the opportunity to cure these defects. Therefore, Plaintiffs should be permitted leave to amend their complaint as to the Washoe County Sheriff's Office, Sheahan, and Settwongse in order to properly set forth the necessary facts and claims against each defendant. Therefore, should Plaintiffs choose to file an amended complaint, it should state what each named defendant did that led to the deprivation of Plaintiffs' constitutional or other federal rights. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiffs must set forth "sufficient factual matter . . . to 'state a claim for relief that is plausible on its face.'" Id. at 678 (citation omitted). Plaintiffs must demonstrate that each defendant personally participated in the deprivation of their rights. Jones, 297 F.3d at 934 (emphasis added). In addition, as to the Washoe County Sheriff's Office, Plaintiffs must include some facts to support an assertion of municipal liability, as described above. Plaintiffs should name each defendant and explain what happened, describing personal acts by the individual defendant that resulted in the violation of their rights. Additionally, they should describe any harm they suffered as a result of the violation.

If Plaintiffs decide to file an amended complaint, they are also advised that an amended complaint supersedes the original complaint. Lacey v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc).

Plaintiffs can also choose to stand on this complaint, in which case this Court will recommend that the complaint be dismissed for failing to comply with the Rules regarding pleading described above.


The Complaint fails to state a decipherable claim and fails to comply with Rule 8 of the Federal Rules of Civil Procedure. The Court, therefore, concludes that dismissal with prejudice and without leave to amend as to the following Defendants is warranted: the Reno Justice Court, the Second District Court, Facebook, and Tinder. Furthermore, the Court, therefore, concludes that dismissal without prejudice and with leave to amend is warranted as to Defendants the Washoe County Sheriff's Office, Sheahan and Settwongse.

The parties are advised:

1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of Practice, the parties may file specific written objections to this Report and Recommendation within fourteen days of receipt. These objections should be entitled "Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points and authorities for consideration by the District Court.

2. This Report and Recommendation is not an appealable order and any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of judgment.


IT IS THEREFORE RECOMMENDED that Plaintiffs' application to proceed in forma pauperis (ECF No. 1) be GRANTED. Plaintiffs shall be permitted to maintain this action to conclusion without the necessity of prepayment of fees or costs or the giving of security therefor. This order granting in forma pauperis status shall not extend to the issuance of subpoenas at government expense.

IT IS FURTHER RECOMMENDED that Plaintiffs' Complaint (ECF No. 1) be DISMISSED WITH PREJUDICE, WITHOUT LEAVE TO AMEND as to the following Defendants: the Reno Justice Court, the Second Judicial District, Facebook, and Tinder;

IT IS FURTHER RECOMMENDED that Plaintiffs' Complaint (ECF No. 1) be DISMISSED WITHOUT PREJUDICE, WITH LEAVE TO AMEND as to Defendants the Washoe County Sheriff's Office, Sean Sheahan and Monique Settwongse;

IT IS FURTHER RECOMMENDED that the Clerk send Plaintiffs a civil rights complaint form; and

IT IS FURTHER RECOMMENDED that Plaintiffs may file an Amended Complaint, no longer than twenty (20) pages, if they believe additional true factual allegations would state a claim, within thirty (30) days from the date of service of the District Court's order on this report and recommendation. DATED: February 22, 2019.

/s/ _________