United States District Court, D. Nevada
January 9, 2017
RICHARD MADRID, Plaintiff,
METRO POLICE DEPARTMENT, et al., Defendants.
J. KOPPE, UNITED STATES MAGISTRATE JUDGE
is proceeding in this action pro se and has
requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis. Docket No. 1. Plaintiff
submitted a complaint. Docket No. 1-2.
In Forma Pauperis Application
has submitted the affidavit required by § 1915(a)
showing an inability to prepay fees and costs or give
security for them. Docket No. 1. Accordingly, the request to
proceed in forma pauperis will be granted pursuant
to 28 U.S.C. § 1915(a). The Clerk's Office is
further INSTRUCTED to file the complaint on the docket. The
Court will now review Plaintiff's complaint.
Screening the Complaint
granting a request to proceed in forma pauperis,
courts additionally screen the complaint pursuant to §
1915(e). Federal courts are given the authority to 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, 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).
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.
Lab. Corp. of Am., 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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (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
(2009) (citing Papasan v. Allain, 478 U.S. 265, 286
(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.
Iqbal, 556 U.S. at 679. Mere recitals of the
elements of a cause of action, supported only by conclusory
allegations, do not suffice. Id. at 678. Secondly,
where the claims in the complaint have not crossed the line
from conceivable to plausible, the complaint should be
dismissed. Twombly, 550 U.S. at 570. Allegations of
a pro se complaint are held to less stringent
standards than formal pleadings drafted by lawyers. Hebbe
v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010)
(finding that liberal construction of pro se
pleadings is required after Twombly and
complaint purports to allege an action pursuant to Title 42,
United States Code, Section 1983, against the Las Vegas
Metropolitan Police Department and Tina Villarreal.
See Docket No. 1-2. The complaint, however, fails to
state which civil rights Plaintiff alleges to have been
violated, fails to state a claim against Defendant Villarreal
at all, and lacks a “short and plain statement of the
claim” showing that Plaintiff is entitled to relief.
See Twombly, 550 U.S. at 555. To state a claim under
42 U.S.C. § 1983, a plaintiff must plead that a
defendant, “acting under color of state law, caused the
deprivation of a federal right.” OSU Student
Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012)
(internal citation omitted). Here, Plaintiff fails to state
the specific federal right allegedly infringed and,
therefore, his cause of action fails to state a claim under
the two named defendants are the Las Vegas Metropolitan
Police Department, and Tina Villarreal, whom Plaintiff
identifies solely as a neighbor. Docket No. 1-2. The Ninth
Circuit has held that, pursuant to Federal Rule of Civil
Procedure 17(b), state law determines the issue of whether a
department of a municipality may sue or be sued. See,
e.g., Streit v. County of Los Angeles, 236 F.3d 552, 565
(9th Cir.2001). The Las Vegas Metropolitan Police Department
is a department of the City of Las Vegas and, “[i]n the
absence of statutory authorization, a department of the
municipal government may not, in the departmental name, sue
or be sued.” Wayment v. Holmes, 912 P.2d 816,
819 (Nev.1996) (citing 64 C.J.S Municipal Corporations §
2195 (1950)); see Schneider v. Elko Cnty. Sheriff's
Dep't, 17 F.Supp.2d 1162, 1165 (D.Nev.1998). See
also Wallace v. City of North Las Vegas, 2011 WL
2971241, *1 (D.Nev. 2011) (“Plaintiffs have not
identified any statutory authority that permits the
Department to be sued, and the court is unaware of any such
authority”); Cerros v. North Las Vegas Police
Department, 2008 WL 608641, *9 (D.Nev. 2008)
(“Nevada does not grant authorization of a police
department to sue or be sued”).
Plaintiff has failed to allege that Defendant Villarreal
acted under color of state law. In order to prevail in a
§ 1983 action, a plaintiff must demonstrate two
elements: (1) the complainant has been deprived of a right
“secured by the Constitution and the laws” of the
United States, and (2) the action complained of was committed
by a person acting under color of state law. Flagg Bros.,
Inc. v. Brooks, 436 U.S. 149, 156-57 (1978). As a
general matter, it is presumed that private parties are not
acting under color of state law for purposes of § 1983.
See Simmons v. Sacramento County Superior Court, 318
F.3d 1156, 1161 (9th Cir. 2003) (plaintiff's allegations
insufficient to establish that a private party is a state
actor under § 1983); see also Kirtley v.
Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citing
West v. Atkins, 487 U.S. 42, 48 (1988)). Simply put,
no right to be free from the infliction of constitutional
deprivations by private individuals or entities exists.
See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835
(9th Cir. 1996).
the complaint fails to state a claim on which relief can be
IT IS ORDERED that:
1. Plaintiffs request to proceed in forma pauperis
is GRANTED. Plaintiff shall not be required to pay the filing
fee of four hundred dollars ($400.00).
2. Plaintiff is permitted to maintain this action to
conclusion without the necessity of prepayment of any
additional fees or costs or the giving of a security
therefor. This Order granting leave to proceed in forma
pauperis shall not extend to the issuance and/or service
of subpoenas at government expense.
3. The Clerk of the Court shall file the Complaint.
4. The Complaint is DISMISSED with leave to amend. Plaintiff
will have until February 8, 2017, to file an Amended
Complaint, if he believes he can correct the noted
deficiencies. If Plaintiff chooses to amend the complaint,
Plaintiff is informed that the Court cannot refer to a prior
pleading (i.e., his original Complaint) in order to make the
Amended Complaint complete. This is because, as a general
rule, an Amended Complaint supersedes the original Complaint.
Local Rule 15-1(a) requires that an Amended Complaint be
complete in itself without reference to any prior pleading.
Once a plaintiff files an Amended Complaint, the original
Complaint no longer serves any function in the case.
Therefore, in an Amended Complaint, as in an original
Complaint, each claim and the involvement of each Defendant
must be sufficiently alleged. Failure to comply with this
order will result in the recommended dismissal of this case.