Opinion
Case No. 3:19-cv-00226-MMD-CLB
10-25-2019
BARTLEY S. BACKUS, Plaintiff, v. AARON FORD, Nevada Attorney General, Defendant.
ORDER
I. SUMMARY
Plaintiff filed this pro se civil rights action against Nevada Attorney General Aaron Ford under 42 U.S.C. § 1983. Before the Court is Defendant's motion to dismiss ("Motion"). (ECF No. 10.)
The Court has reviewed Plaintiff's opposition to the Motion ("Opposition") (ECF No. 14) and Defendant's reply (ECF No. 16).
II. BACKGROUND
The following background facts are adapted from the Complaint. (ECF No. 1.) Plaintiff alleges that he has been eavesdropped and assaulted by radio signals for years while traveling throughout Nevada, causing him injuries. (ECF No. 1 at 3, 5.) He alleges that he reported this to law enforcement, government agencies, and state and federal representatives, but he has received no help. (Id. at 4.) Plaintiff claims that Defendant violated his Fourth Amendment right against unreasonable searches and seizures, the Thirteenth Amendment's prohibition of slavery, and the Due Process and Equal Protection Clauses under the Fourteenth Amendment. (Id. at 5-8.) /// ///
III. LEGAL STANDARD
A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). 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); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 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)). "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal citation omitted).
In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged—but not shown—that the pleader is entitled to relief." Id. at 679 (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.
Particular care is taken in reviewing the pleadings of a pro se party, for a more forgiving standard applies to litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a liberal construction may not be used to supply an essential element of the claim not initially pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).
IV. DISCUSSION
Defendant contends and the Court agrees that the Complaint fails to connect Defendant to the radio signals that Plaintiff has heard. (ECF No. 10 at 5.) Absent such connection, Plaintiff cannot state a claim against defendant. Indeed, the Complaint only mentions Defendant's name once on the cover page. (ECF No. 1 at 1.) Accordingly, the Complaint fails to set forth a plausible claim for relief against Defendant.
If dismissal is appropriate, a pro se plaintiff should be given leave to amend the complaint and notice of its deficiencies, unless it is clear that those deficiencies cannot be cured. Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995). Because it is clear that amendment is futile, the Court declines to grant leave to amend.
In his Opposition, Plaintiff suggests that his sole allegation against Defendant is for refusing to investigate and prosecute Plaintiff's claims when Plaintiff forwarded copies of his complaints to the Attorney General's office and later called the office to complain to a John Berrier. (ECF No. 14 at 2-3.) Even if Plaintiff amended his Complaint to include that allegation, there is no statutory or common law right to an investigation. See Fisher v. Smith, No. CV-07-08109-MMM-RCX, 2008 WL 11409586, at *4 (C.D. Cal. Mar. 24, 2008) (collecting cases).
Plaintiff cannot allege his claims for relief in his Opposition. Instead, he must allege them in his Complaint or in a document attached as an exhibit to his Complaint. Fed. R. Civ. P. 10. However, Plaintiff's allegation assists this Court in predicting how Plaintiff would amend his Complaint for purposes of determining whether leave to amend should be granted. As such, the Court will address Plaintiff's allegation in the Opposition.
Nor has Plaintiff alleged or suggested any facts that would give rise to a "special relationship" between him and Defendant that would obligate Defendant to protect Plaintiff from the radio signals. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 700 (9th Cir. 1988) (holding that the existence of a special relationship depends on factors that include whether: (1) the state created or assumed a custodial relationship towards the plaintiff; (2) the state affirmatively placed the plaintiff in danger; (3) the state was aware of a specific risk of harm to the plaintiff; or (4) the state affirmatively committed itself to the protection of the plaintiff).
Moreover, nowhere does Plaintiff allege or suggest that Defendant personally participated in violating Plaintiff's constitutional rights, that Defendant directed his subordinates to commit the violations or that he knew of the violations and failed to act to prevent them. See Rowe v. Aranas, No. 3:16-cv-00535-MMD-VPC, 2018 WL 4088019, at *3 (D. Nev. Aug. 27, 2018) (citing to Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). Instead, Plaintiff spends an inordinate amount of his Complaint and Opposition discussing miscellaneous individuals who have no discernible connection with Defendant.
"It would be a misuse of judicial resources to continue the case where it is wholly without merit. As the [C]ourt has the ability to grant leave to amend 'when justice so requires,' Fed. R. Civ. P. 15(a)(2), this case does not present a situation when leave would be appropriate." Wallace v. Romney, No. 3:12-CV-00167-MMD, 2013 WL 2153107, at *2 (D. Nev. May 16, 2013) (dismissing complaint without leave to amend where plaintiff made fanciful allegations of a conspiratorial religious order seeking to take over the United States).
In sum, the Court dismisses Plaintiff's Complaint with prejudice and without leave to amend.
V. CONCLUSION
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court.
It is further ordered that Defendant's motion to dismiss (ECF No. 10) is granted. Plaintiff's Complaint is dismissed with prejudice. /// /// ///
The Clerk of Court is directed to enter judgment in Defendant's favor in accordance with this order and close this case.
DATED THIS 25th day of October 2019.
/s/_________
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE