Bradford v. Sisolak

Julius Bradford, Plaintiff, v. Steve Sisolak, et al., Defendants.

Case No. 2:20-cv-00871-APG-BNW

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

May 14, 2021

ORDER

Pro se plaintiff Julius Bradford brings a complaint under 42 U.S.C. § 1983 against several government officials. ECF No. 15. Bradford does not proceed in forma pauperis ("IFP"). ECF No. 7. But the Court must screen his complaint because he is an incarcerated litigant who seeks redress from a government officer, employee, or entity. See 28 U.S.C. § 1915A(a).

Bradford's complaint primarily takes aim at several provisions in the Nevada Revised Statutes that he claims are void because they codify a law not found in the Statutes of Nevada, were enacted without an enacting clause on their face, or were otherwise ratified in a manner inconsistent with Nevada law. Bradford claims that the infirmities in these challenged provisions violate his rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution. However, the Court finds that Bradford lacks standing to bring his claims because—even accepting his well-pled allegations as true and construing them in the light most favorable to Bradford—he has not sufficiently alleged an injury. Bradford will be granted leave to amend by June 16, 2021.

Also before the Court are several motions pertaining to service. ECF Nos. 13, 16, 26, 27, and 28. These motions will be denied because upon entry of this order Bradford's complaint will be dismissed. Finally, Bradford moves to supplement his amended complaint, ECF No. 20, but this motion will be denied because a complaint must be complete in and of itself.

I. Screening order

A. Screening standard

The Court must screen every complaint asserted by an incarcerated litigant who "seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). This mandate applies to all incarcerated litigants, "no matter their fee status." Ketchens v. Corcoran, 2021 WL 75675, at *1 (S.D. Cal. Jan. 8, 2021).

When the Court screens a complaint under § 1915A, it must identify cognizable claims or dismiss any portion of the complaint that (1) "is frivolous, malicious, or fails to state a claim upon which relief may granted"; or (2) "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). In other words, to survive § 1915A 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).

In considering whether the complaint is sufficient to state 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. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

B. Standing

The jurisdiction of a federal court is limited to actual cases and controversies. U.S. CONST. art. III, § 2, cl. 1. "That limitation is given effect by requiring a litigant to establish standing before invoking the court's authority." Watkins v. Peterson Enters., Inc., 57 F. Supp. 2d 1102, 1111 (E.D. Wash. 1999). When a case is at the pleading stage, the plaintiff must clearly allege facts demonstrating standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

To establish standing, a plaintiff must show that it has suffered a cognizable injury-in-fact. Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1093 (9th Cir. 2003). An injury-in-fact "must be 'concrete and particularized' and 'actual and imminent,' as opposed to 'conjectural' or 'hypothetical.'" Marijuana Pol'y Project v. Miller, 578 F. Supp. 2d 1290, 1299 (D. Nev. 2008).

C. Screening the Complaint

1. Allegations

Bradford asserts ten causes of action against a slew of Nevada state and local government officials, including the governor, Attorney General, Clark County District Attorney, members of the Clark County Board of Commissioners, and current and former employees of the Legislative Counsel Bureau. ECF No. 15 at 1. Bradford claims that in 1951 the Nevada legislature created the Statute Revision Commission. Id. at 9. The Commission comprised three Nevada Supreme Court justices, and its task was to compile, codify, and annotate all of Nevada's existing general laws. Id. This codified version of the laws became known as the Nevada Revised Statutes ("NRS"). Id. The NRS were "intended to serve as prima facie evidence of the actual laws," though they can be rebutted by showing proof that the actual Nevada law differs from the NRS in some meaningful way. Id.

Bradford alleges that the Commission erred when it created the NRS. According to Bradford, the Commission mistakenly compiled the NRS "from previous codified versions, rather than from actual acts of the Nevada legislature." Id. at 10. This error supposedly rendered the NRS null because the Nevada legislature did not authorize the NRS "to be prima facie of compilations which themselves were prima facie evidence." Id. Nevada's officials allegedlyrecognized this error and, in an effort to "save" the NRS, the legislature in 1957 ratified Senate Bill No. 2 ("SB2"). Id.

SB2 purported to repeal all of the previous laws "and replace them with 'new' laws enacted 'within' the act." Id. SB2 comprises 9 sections. ECF No. 15-1 at 6-9. Section 3 repealed every Nevada law "of a general, public, and permanent nature enacted prior to January 21, 1957." Id. This provision, according to Bradford, nullified the pre-1957 NRS and all other preceding compilations" Id. at 12. Section 1 provides that Nevada law shall comprise the statute laws that follow section 9. ECF No. 15-1 at 6-9. Section 8 provides that "[t]he provisions of NRS 1.010 to 710.590, inclusive, appearing following section 9 of this act shall not be printed or included in the Statutes of Nevada . . .; but there shall be inserted immediately following section 9 of this act the words: 'Here followed NRS 1.010 to 710.590, inclusive.')." Id. To that end, section 9 provides that "[t]he following laws and statutes attached hereto, consisting of NRS section 1.010 to 710.590, inclusive, constitute the Nevada Revised Statutes: (Here followed NRS 1.010 to 710.590, inclusive.)." ECF No. 15-1 at 9.

2. Causes of action

i. Claim 1

Bradford alleges that SB2 § 9 is facially unconstitutional because it infringes on his right of free speech and is void for vagueness. Id. at 27. Specifically, in this count Bradford takes issue with the language in § 9 that provides "Here followed NRS 1.010 to 710.590, inclusive." Id. He claims that at least some of the laws in the spectrum between NRS 1.010 to 710.590 contain penalties, but that there is no way for him to discern from § 9 what conduct is proscribed and what the penalties are for engaging in proscribed conduct. Id. Bradford also complains that § 9 does not indicate what specific statutes are included within the "NRS 1.010 to 710.590" language. In other words, he complains that "[t]he only certainty is that two statute laws, '1.010 and 710.590,'" are included within the language of § 9.

a) First Amendment challenge

Beginning with the First Amendment challenge, the mere existence of a proscriptive statute does not satisfy the "case or controversy" requirement. Thomas v. Anchorage Equal RightsComm'n, 220 F.3d 1134, 1138 (9th Cir. 2000). Generally, a plaintiff lacks standing unless there exists a genuine threat of imminent prosecution. Humanitarian Law Project v. U.S. Dept. of Treasury, 463 F. Supp. 2d 1049, 1068 (C.D. Cal. 2006) (citing Thomas, 220 F.3d at 1139).

In the First Amendment context, the Supreme Court has dispensed with rigid standing requirements and "the inquiry tilts dramatically toward a finding of standing." Humanitarian Law Project, 463 F. Supp. 2d at 1068; Libertarian Party of Los Angeles Cnty. v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013). The logic behind this rule is that "a chilling of the exercise of First Amendment rights is, itself, a constitutionally sufficient injury." Bowen, 709 F.3d at 870. Therefore, if a plaintiff "has refrained from engaging in expressive activity for fear of prosecution under the challenged statute, such self-censorship is a constitutionally sufficient injury as long as it is based on an actual and well-founded fear that the challenged statute will be enforced." Id. (citing Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010)).

To determine the genuineness of a claimed threat of prosecution, courts consider three factors: (1) whether the plaintiff has articulated a concrete plan to violate the law in question; (2) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings; and (3) the history of past prosecution or enforcement under the challenged statute. Id. at 870.

In Thomas, the plaintiffs were two religious landlords who believed that cohabitation between two unmarried persons—and a landlord's facilitation of this living arrangement—was a sin. Thomas, 220 F.3d at 1137. The landlords challenged a law which made it unlawful to refuse to sell, lease, or...