Petition for Writ of Certiorari — Steven Crain, Petitioner v. Nevada, et al.

APPENDIX

App. 1.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN CHAIN,

No. 17-15116

Plaintiff-Appellant I

I D.C. No.

V.

I 2:16-cv-00406-JAD-PAL

STATE OF NEVADA and MEMORANDUM*

MICHAEL VANDYKE, I

Parole Officer,

I (File May 24, 2018

Defendants-Appellees I

Appeal from the United States District Court

For the District of Nevada

Jennifer A. Dorsey, Strict Judge, Presiding

Submitted May 15, 2018**

Before: WALLACE and N.R. SMITH, Circuit Judges

and BATTS,*** District Judge.

Crain appeals from the dismissal of his section

1983 claims for unlawful

App. 2

This disposition is not appropriate for

publication and is not precedent except a provided by

Ninth Circuit Rule 36-3.

*

The panel unanimously concludes this case is

suitable for decision without oral argument. See

Fed. R. App. P. 34(a)(2).

**

The Honorable Deborah A. Batts, United

States District Judge for the Southern District of

New York, sitting by designation.

***

arrest and malicious prosecution in violation of his

Fourth Amendment rights, and the dismissal of his

Nevada claim for malicious prosecution. Crain has

waived any challenge to the dismissal of his Nevada

claims for false imprisonment and intentional

infliction of emotional distress by failing to brief the

issues on appeal. United States v. Murilto-Alvarado,

876 F.3d 1022, 1026 n.2 (9th Cir. 2017).

I. The district court properly dismissed Crains

section 1983 claim for unlawful arrest because

documents in the record contradict his allegation

that Officer VanDyke made a deliberate falsehood or

omission in obtaining the arrest warrant. See Chism

v. Washington State, 661 F.3d 380, 386 (9th Cir.

2011). The district court properly took judicial

notice of the documents because they included both

public records and documents necessarily relied on

by the complaint. See Marder v. Lopez, 450 F.3d 445,

App. 3

448 (9th Cir. 2006); United States v. Ritchie, 342 F.3d

903, 908 (9th Cir. 2003). Crain does not dispute the

contents or authenticity of the documents. See

Skilstafv. CVS Caremark, 669 F.3d 1005, 1016 n.9

(9th Cir. 2012). In addition, Crain has waived any

challenge to the taking of judicial notice by failing to

brief the issue on appeal. Muriflo-Alvarado, 876 F.3d

at 1026 n.2.

The district court properly dismissed Cram's

section 1983 and Nevada claims for malicious

prosecution.

Crain has failed to rebut the

presumption that the prosecutor exercised

independent judgment because, as discussed above,

he has not shown that Officer VanDyke presented the

prosecutor with information known to be false. See

Blankenhorn v. City of Orange, 485 F.3d 463, 482 (9th

Cir. 2007). Nor has he shown that Officer VanDyke

pressured the prosecutor or caused the prosecutor to

act contrary to the prosecutor's independent

judgment. Id.; M& Rlnv. Co. v. Mandarino, 748 P.2d

488, 494 (Nev. 1987).

The district court did not abuse its discretion in

denying Crain a third opportunity to amend his

complaint. Garman v. County of Los Angeles, 828

F.3d 837, 842 (9th Cir. 2016). Because the judicially

noticed documents show Officer VanDyke did not

violated Cram's constitutional rights in filing the

challenged affidavit, any amendment would be futile.

Id.

AFFIRMED.

App. 4

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN CRAIN,

Plaintiff-Appellant,

I No. 17-15116

I D. C.

I 2:16-cv-00406

-JAD-PAL

V.

STATE OF NEVADA and MICHAEL I ORDER

VANDYKE, Parole Officer,

I (Filed Jul.

Defendants-Appellees F 24, 2018).

Before: WALLACE AND N.R. SMITH, Circuit

Judges, and BATTS,* District Judge.

The panel has unanimously voted to deny the

petition for panel rehearing. Accordingly, the

petition for panel rehearing is DENIED.

IT IS SO ORDERED.

The Honorable Deborah A. Batts, United States

District Judge for the Southern District of New York, sitting by

designation.

*

App. 5

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

STEVEN CRAIN,

I 2:16-cv-00406-JAD-

Plaintiff

V.

STATE OF NEVADA, et al.,

Defendants

Order Granting

Motion To Dismiss

and Denying as Moot

Definite Statement

[ECF Nos. IS, 161

Steven Crain sues the State of Nevada and

parole officer Michael VanDyke to challenge his

arrest for violating a mandatory counseling term of

his lifetime supervision. Operating under the belief

that the state court could not require him to attend

counseling as a term of supervision because he

entered and Alford plea, not a guilty plea. grain

alleges that his arrest for failing to comply with the

counseling term was unconstitutional and otherwise

illegal. Defendants move to dismiss Cram's

complaint, or, alternatively, for a more definite

statement. 1 Crain opposes defendants' motion and

has since filed a second-amended complaint.

Beaus Grain's claims fail as pled-even after he had

the benefit of defendants' dismissal arguments, and I

find that these deficiencies could not be cured by

amendment, I grant defendants' dismissal motion,

deny their motion for a more definite statement as

moot, dismiss all ofCrain's claims with prejudice,

and close this case. 2

Background

Cram's first-amended complaint included

claims by co-plaintiff Harold Krieg and named

defendants the State of Nevada, parole officer

Michael VanDyke, parole officer Gary Smith, and

Las VegasMetropo1itan Police Department (Metro).3

After the defendants moved to dismiss or,

alternatively, for a more definite statement, the

parties stipulated to dismiss with prejudice all

claims brought by plaintiff Krieg and all claims

against Smith and Metro, leaving only Cram's

1 ECF Nos 15, 16.

2 I find these matters suitable for disposition without

oral argument. L.R. 78-1

3 ECF Nos. 5

App. 7

claims against the State of Nevada and VanDyke. 4

The parties also stipulated to allow Crain to file a

second-amended complaint, which defendants

maintain does not cure the issues raised in their

dismissal motion.

In his second-amended complaint, Cram, who

was sentenced to prison time followed by lifetime

supervision after he entered an Alford plea to the

charge of attempted lewdness with a child under 14,

alleges that, in July 2014, parole officer VanDyke

"sought an arrest warrant [that] did not set forth

exculpatory information." 5 Crain alleges that

VanDyke deliberately omitted from the declaration

of arrest that: Crain had entered an Alford plea was

therefore exempt from counseling. 6 VanDyke had

been the subject of Cram's whistle-blowing blog and

was upset that Crain was writing a tell-all book; 7

Cram's previous parole officers had not required him

to attend counseling; 8 and Crain did not threaten

4 ECF No 26.

5 ECF No. 30 at ¶ 12.

6Idat1Jf 13-14.

7 Id at ¶ 16.

8 Id at ¶ 17.

therapist Alyson Shainker. 9 VanDyke also- allegedly

falsely included that Crain had sued his former

counselor, John Pacult. As a result of VanDyke's

misleading declaration of arrest, Crain alleges that

he was arrested without probable cause, charged

with an unspecified felony crime, and jailed for

approximately- ten months. 10 The charges against

Crain were eventually dismissed. ii

Crain asserts five claims: unlawful arrest and

malicious prosecution under § 1983 and false

imprisonment, malicious prosecution, and

intentional infliction of emotional distress under

Nevada state law. He seeks monetary damages

against VanDyke and injunctive and declaratory

relief against the state "prohibiting Mr. Crain to be

required to attend counseling" and "holding that

mandatory counseling for lifetime supervision

requiring a citizen who enters an Alford Plea to

admit the underlying offense is unconstitutional." 12

9 Id at ¶ 18.

10 Id at ¶j 19.21

11 Id at ¶ 21

12 Id at ECF No. 30 at 8

App. 9

Discussion

A. Motion to dismiss standards

Rule 8 of the Federal Rules of Civil Procedure

requires every complaint to contain "[a] short and

plain statement of the claim showing that the

pleader is entitled to relief." 13 While Rule 8 does

not require detailed factual allegations, the properly

pled claim must contain enough facts to "state a

claim to relief that is plausible on its face." 14 This

"demands more than an unadorned, the-defendantunlawfully-harmed-me accusation"; the facts alleged

must raise the claim "above the speculative level." 15

In other words, a complaint must make direct or

inferential allegations about "all the material

elements necessary to sustain recovery under some

13 Fed. R. Civ. P. 8(a)(2); Bell Ati. Corp v. Twombly, 550

U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678.79

(2009).

14 Twombly, 550 U.S. at 570

15 Iqbal, 556 U.S. at 678

App. 10

viable legal theory." 16

District courts employ a two-step approach

when evaluating a complaint's sufficiency on Rule

12(b)(6) motion to dismiss. First, the court must

accept as true all well-pled factual allegations in the

complaint, recognizing that legal conclusions are not

entitled to the assumption of truth. 17 Mere recital

of a claim's elements, supported only by conciusory

statements, are insufficient. 18 Second, the court

must consider whether the well-pled factual

allegations state a plausible claim for relief. 19 A

claim is facially plausible when the complaint alleges

facts that allow the court to draw a reasonable

inference that the defendant is liable for the alleged

misconduct. 20 A complaint that does not permit the

16 Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc,

v. Ford Motor Co., 745 F. 2d 1101, 1106 (7th Cir. 1989))

(emphasis in original).

17 Iqbal, 556 U.S. at 678-79.

181d

19 Id at 679.

20 Id

App. 11

court to infer more than the mere possibility of

misconduct has "alleged—but not shown—that the

pleader is entitled to relief;" and it must be

dismissed. 21

B.

Evidence outside the pleadings

"In ruling on a 12b)(6) motion, a court may

generally consider only allegations contained in the

pleadings, exhibits attached to the complaint, and

matters properly subject to judicial notice." 22

Otherwise, the motion must be converted into one for

summary judgment for evidence to be considered.

The Ninth Circuit has adopted two narrow

exceptions to this rule in order to prevent plaintiffs

from avoiding dismissal "by deliberately omitting

references to documents upon which their claims are

based." 23 A court may consider documents where

(1) "the complaint necessarily relies upon the

document" or (2) "the contents of the documents are

alleged in the complaint, the document's

authenticity is not in question, and the document's

21 Twombly, 550 U.S. at 570.

22 Swartz n. KPMG LLP, 476 F.3d 756, 763 (9th Cir.

2007).

23 Parrino u. FHP. Inc., 146 F.3d 699, 706 (901 Cir. 1998)

(superseded by statute on other grounds as stated in

AbregoAbrego v. The Dow Chem. Co., 443 F.3d 676, 681-82 (9th

Cir. 2006)).

App. 12

relevance is not in dispute." 24 A court may also

"take judicial notice of adjudicative facts not subject

to reasonable dispute." 25

Defendants attach several documents to their

dismissal motion, all of which I may consider

without converting this motion in one for summary

judgment because they are matters of proper judicial

notice or are incorporated by reference into the

complaint, and Crain does not question the

authenticity of any of these documents or object to

my consideration of them in his response. 26 For

purposes of déféndants' dismissal motion, I therefOre

consider the attached state-court documents from

the criminal case that led to Cram's placement on

lifetime supervision, 27 Cram's lifetime-supervision

24 Coto Settlement u. Eisenberg, 593 F.3d 1031, 1038 (91h

Cir. 2010).

25 United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir.

1994); FED. R. EVID. 201(a)-(f).

26 I deem this a consent to defendants' request for

judicial notice. L.R. 7-2(d).

27 ECF No. 15-1 (Alford guilty plea agreement); ECF No.

15-2 (state-court docket sheet); ECF 15-3 (judgment of

conviction); ECF No. 15-4 (order denying Cram's postconviction habeas petition for relief from lifetime supervision);

App. 13

agreement, 28 VanDyke's warrant declaration and

supporting documentation, 29 state-court documents

in Cram's case against John Pacuit, 30 state-court

documents from the criminal prosecution at issue in

this case, 31 and the alleged "whistieblowing" biog

post." 32

Each of Cram's claims fail because there was

C.

probable cause to believe that he had violated the

terms of his lifetime supervision by refusing to

attend counseling.

The state-court records show that Cram

entered an Alford guilty plea to attempted lewdness

with a child under the age of 14 in 2000 and was

28 ECF No. 15-5.

29 ECF No. 15-10 (declaration and statement from Red

Rock Psychological Health); ECF No. 15-11 (arrest warrant).

30 ECF No. 15.6 (complaint); ECF No. 15-7 (order

granting defendants' motion to dismiss); ECF No. 15-8, 15-9

(docket sheet).

31 ECF No. 15-12.

32 ECF No. 15-13.

App. 14

sentenced to 44-120moths in prison. 33 The

judgment of conviction also provided that Cram

would be "given a special sentence of LIFETIME

SUPERVISION to commence upon completion of

parole, probation or term of imprisonment." 34

When Crain was paroled in 2006, he signed a

lifetime-supervision agreement in which he agreed

to, among other things, participate in professional

counseling. 35 Crain does not allege that he

successfully completed counseling, and all of Cram's

claims hinge on his alleged unlawful arrest and

prosecution for violating the conditions of his

lifetime supervision by falling to attend counseling.

Grain's tacit argument that he was not

required to attend counseling because he entered an

Alford plea and there was therefore not probable

cause for his arrest despite the express terms of the

judgment of conviction and lifetime-supervision

agreement is unavailing. Under Nevada law, an

Alford plea "is equivalent to a guilty plea in that it

33 ECF No. 15-1, 15-3

34 ECF No. 15-3 at 3.

35 ECF No. 15-5

App. 15

authorizes the court to treat the defendant as if the

defendant had pleaded guilty." 36 Crain offers no

authority for the novel proposition that sex offenders

who enter Alford pleas cannot be required to

complete counseling as a term of their supervised

release. 37 Nor does he respond to defendants'

argument that his supervision requirements are

constitutional despite his Alford plea. 38

Because the state-court records show that

Crain was required to attend counseling and I reject

his constitutional argument that he was not, the

question becomes whether VanDyke had probable

cause to believe that Crain was violating the

conditions of his supervision by not attending

counseling. Crain does not allege that he was

36 State v. Lewis, 178 P.3d 1467, 147 (Nev. 2008).

37 Even if I were to recognize a right to be free of the

counseling component of lifetime supervision based on an

Alford plea, VanDyke would be entitled to qualified immunity

on Cram's § 1983 Claims because the right was not clearly

established when VanDyke submitted the declaration of arrest.

Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (police officers

applying for warrants are immune if a reasonable officer could

have believed that there was probable cause to support the

application).

38 L.R. 7-2(d)

App. 16

attending counseling at the time of his arrest or that

he had completed counseling. Instead, he alleges

that VanDyke deliberately omitted "exculpatory"

information from the arrest declaration, which led to

his arrest and resultant prosecution in violation of

Brady v. Maryland. 39 Brady and its progeny do not

address arrest warrants, so I assume that Crain is

really attempting to assert a claim under Franks v.

Delaware. To state a Franks claim under § 1983based on alleged misrepresentation or omissions in

search-warrant affidavits, a plaintiff must allege (1)

a deliberate falsehood, material omission, or reckless

disregard for the truth and (2) that, but for the

dishonesty, the challenged action would not have

occurred. 40

As to Cram's malicious-prosecution claims, a

plaintiff may bring a malicious-prosecution claim not

only against the prosecutor but also against police

officers and investigators who were instrumental in

initiating the prosecution. 41 Generally, police

39 ECF No. 30 at ¶ 12.

40 Liston v. City of Riverside, 120 F.3d 965, 973 (9th Cir.

1997).

41 Smith v. Almada, 640 F. 3d 931, 938 (9th Cir. 2011);

LaMantia v. Redisi, 38 P.3d 877, 879-80 (Nev. 2002).

App. 17

officers "are not liable for damages suffered by the

arrested person after a district attorney files charges

unless the presumption of independent judgment by

the district attorney is rebutted." 42 "This

presumption may be rebutted by showing, for

example, that the prosecutor was pressured or

caused by the investigating officerfl to act contrary

to his independent judgment or that the

investigating offrcerfl presented the prosecution with

information known by [him] to be false." 43

According to Cram, VanDyke deliberately

omitted that: (1) Crain had entered an Alford plea

and was therefore exempt from counseling. 44 (2)

VanDyke had been the subject of Cram's whistleblowing biogs aiidwas upset that VanDyke was

writing a tell-all book, 45 and (3) Cram's previous

parole officers had not required him to attend

counseling; 46 and (4) Crain did not threaten

42 Blankenhorn. v. City of Orange, 485 F.3d 463, 482 (9th

Cir. 2007) (internal quotation marks omitted).

43 Id. (internal quotation marks omitted).

44 ECF No. 30 at ¶J 13-14

45 Id. At 11 16.

46 Id. at 17.

!32'- t:

counselor Alyson Shainker. 47 Crain also alleges

that VanDyke falsely stated that Crain had sued

Cram's former counselor, John Pacult.

Simply put, defendants' exhibits disprove

Cram's allegations. As discussed above, Crain was

not exempt from counseling simply because he

entered an Alford plea. 48 The blog that Crain refers

to was authored by his former co-plaintiff Harold

Krieg In January 2015 —six months after Crain was

arrested—so it could not have been included in the

arrest declaration even if it were relevant. 49

Whether Cram's previous parole officers had

required him- to attend counseling is irrelevant to the

charged offense. VanDyke's statements accurately

47 Id. at ¶ 18.

48 Crain alleges that his criminal defense attorney told

him that he "was compliant by exercising his constitutional

right no to attend counseling pursuant to Judge Loehrer's

Order and his Alford Plea." ECF No. 30 at ¶ 14. Judge

Loehrer granted the district attorney's motion to dismiss

Cram's state-court civil case claiming that his Alford plea

absolved him of the counseling requirement. In doing so, the

state-court judge merely "suggested" that Cram "pursue

modification of his probation conditions" to remove the

counseling requirement. ECF No. 15.9. Thus, no actor from

the state of Nevada told Crain that he did not need to attend

counseling without having his conditions officially modified.

49 ECF No 15-13

App. 19

reflect Alyson Shainker's attached report that Cram

was highly disruptive in group counseling and was

terminated from counseling as a result, and these

statements could not reasonably be read to mean

that Crain threatened the counselor herself and are

not misleading-. 5or As to the statement in the

warrant declaration that Crain attempted to sue

counselor John Pacult, this statement is also true.

Defendants provide state-court records showing that

Crain did in fact unsuccessfully sue John Pacult

(along with various other defendants) in Nevada

state court, which belies Cram's contention that this

statement was false. 51

Even if these omissions were material and I

accepted all of Cram's allegations as true without

taking judicial notice of defendants' exhibits, Cram's

claims still fail as pled. He does not allege or offer

any facts to show that the warrant for his arrest

would not have been issued but for the omission of

this information or that the resultant prosecution

would not be ensued. Even omitting VanDyke's

allegedly false statement that Crain had sued John

Pacult and adding all of the allegedly exculpatory

50 ECF No. 15-10

51 ECF Nos. 15-6,15-7

App. 20

information that Crain claims should have been

included, the declaration of arrest is still more than

sufficient to support a finding of probable cause that

Crain was not attending counseling in violation of

his lifetime-supervision agreement. Thus, Cram's

malicious-prosecution and unlawful- arrest claims

fail as a matter of law. Because Cram's TIED claim

is based on his alleged unlawful arrest and malicious

prosecution, it, too, fails because he has not alleged

any other extreme or outrageous conduct on behalf of

VanDyke. Because Crain had the benefit of'

defendants' dismissal motion when he filed his

seconded complaint, and was thus well aware of

these deficiencies; and the state-court records and

declaration of arrest on which Cram's claims are

based belie the majority of his factual allegations, I

find that further amendment would be futile. I

therefore dismiss Cram's second-amended complaint

with prejudice and without leave to amend and close

this case.

Conclusion

Accordingly, with good cause appearing and no

reason to delay, IT IS HEREBY ORDERED,

ADJUDGED, and DECREED that defendants'

motion to dismiss [E CF No. 15] is GRANTED and

defendants' motion for a more definite statement

[ECF Na. 1-6]- is DENIED-as moot. This action is

dismissed with prejudice.

App. 21

The Clerk of Court is instructed to enter

judgment fOr defendants and against- Crain and

CLOSE THIS CASE.

Dated this 21st day of December, 2016.

1st Jennifer A. Dorsey

JENNIFER A. DORSEY

UNITED STATES

DISTRICT JUDGE