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Leal v. Ferrini

United States District Court, D. Nevada

December 31, 2014

NICOLE R. LEAL, Plaintiff,
MICHELLE FERRINI, et al., Defendants

Nicole R. Leal, Plaintiff, Pro se, Las Vegas, Nv.

ORDER (Various Mtns -- Dkt. ##1-9 & 10)


Plaintiff Nicole R. Leal is proceeding in this action pro se. She has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis and submitted a complaint. This matter was referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rules IB 1-3 and 1-4.

I. In Forma Pauperis Application (Dkt. #1).

Plaintiff has submitted the affidavit required by § 1915(a) showing that she is unable to prepay fees and costs or give security for them. Accordingly, her request to proceed in forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff's complaint.

II. Screening the Complaint

Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the action is legally " frivolous or malicious, " fails to state a claim upon which relief may be granted, or 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(a), 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. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 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); Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). The court must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Id. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 679-80. Secondly, where the claims in the complaint have not crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570.

The complaint was filed on the court's form civil rights complaint pursuant to 42 U.S.C. § 1983. To state a claim under section 1983, a plaintiff must allege that a right secured by the Constitution has been violated, and the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (citation omitted). States and state officers sued in their official capacity are not " persons" for the purposes of a section 1983 action, and generally, they may not be sued under the statute. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Section 1983 does allow suits against state officers in their individual capacities. Hafer v. Melo, 502 U.S. 21, 26, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Plaintiff's complaint names her former landlord, Michelle Ferrini, and Mark Aliano, the owner of a company called Granite City & Marble, located in Stoughton, Massachusetts. Plaintiff has not alleged either of these people are state actors, and she cannot state a claim under 42 U.S.C. § 1983 against them.

The complaint alleges that Plaintiff currently resides in Las Vegas, Nevada. She moved out of her former residence, 976 Douglas Avenue in Providence, Rhode Island, on July 19, 2014. She asserts claims of fraud, mail fraud, breach of contract, and negligence against Ferrini and Aliano and seeks damages in the amount of $80, 000.00 for " emotional distress, financial difficulties." She claims that her landlord, Michelle Ferrini, picked up her mail from her Douglas Avenue address and has not mailed an unspecified " government-issued check" to Plaintiff at her residence in Las Vegas, Nevada. Ferrini has also not mailed Plaintiff her $750.00 security deposit. Plaintiff signed a leasing agreement that her $750.00 security deposit would be refunded thirty days after her move out date, but she has not yet received it.

As an initial matter, Plaintiff has not alleged any facts at all to support a claim against Defendant Aliano or Granite City & Marble. She alleges only that Aliano owns Granite City & Marble, and that Michelle Ferrini collected Plaintiff's rent on behalf of the company. As Plaintiff has not alleged any facts to support a claim against Aliano and Granite City & Marble, Plaintiff's claims against them will be dismissed with leave to amend. For reasons discussed below, the court doubts that Plaintiff will be able to establish that this court has personal jurisdiction over the Defendants, or subject matter jurisdiction over this case.

With respect to Ferrini, Plaintiff has not alleged any facts to support this court's personal jurisdiction over Ferrini, or subject matter jurisdiction over Plaintiff's complaints against her. Federal courts are courts of limited jurisdiction and possess only that power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004). Plaintiff's complaint asserts claims for mail fraud, breach of contract, and negligence. Mail fraud is a federal crime prohibited by 18 U.S.C. § 1341. As a general rule, there is no private right of action under title 18 of the United States Code. See Dyson v. Utigard, 163 F.3d 607, 607 (9th Cir. 1998); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (no basis for civil liability under Title 18). In plain English, this means that a plaintiff may not sue defendants for violation of the mail fraud statute.

Plaintiff's other two claims for breach of contract and negligence are not federal claims. Plaintiff's complaint does not establish that the court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.

Plaintiff may be filing this case in federal court because she believes she can invoke the court's diversity jurisdiction under 28 U.S.C. ยง 1332 because she now resides in Nevada, Ferrini resides in Rhode Island, Aliano and Granite City & ...

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