United States District Court, D. Nevada
J. KOPPE United States Magistrate Judge.
25, 2015, Plaintiff filed an application for leave to proceed
in forma pauperis, along with a complaint. Docket
No. 1. On June 26, 2015, the Court denied Plaintiff's
application without prejudice for failure to include a
financial certificate, certified copy of his inmate trust
account statement, and a signed financial affidavit. Docket
No. 2 at 1. On July 21, 2015, Plaintiff filed a renewed
application for leave to proceed in forma pauperis.
Docket No. 3. On July 29, 2015, the Court denied
Plaintiff's renewed application without prejudice, again
because it was incomplete. Docket No. 4 at 1-2. On August 19,
2015, Plaintiff filed a renewed application for leave to
proceed in forma pauperis, which the Court granted
on January 12, 2016. Docket Nos. 5, 6. The Court later
amended its order granting Plaintiff's application for
leave to proceed in forma pauperis. Docket No. 7.
The Court will now screen Plaintiff's complaint.
granting a request to proceed in forma pauperis, a
Court additionally screens the complaint pursuant to §
1915. 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.
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 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
Plaintiff's status as a pro se litigant, the
Court has construed his complaint liberally. Plaintiff frames
his claims as being brought pursuant to 42 U.S.C. §
1983. Docket No. 1-1 at 1. To state a claim under §
1983, a plaintiff must allege that a right secured by the
Constitution or statutory law has been violated, and the
deprivation was committed by a person acting under color of
law. See Anderson v. Warner, 451 F.3d 1063, 1067
(9th Cir. 2006). With respect to Defendants Beck, Escartin,
Holloway, Laurenco, Rich, Porter, and Thomas (hereinafter
“individual defendants”), Plaintiff appears to
allege that the conduct that gave rise to his claims against
them took place while they were on duty as police officers
for the City of Las Vegas. Docket No. 1-1 at 3-5. Therefore,
the Court construes Plaintiff's complaint as alleging
that the individual defendants acted under color of law as
police officers for the City of Las Vegas.
alleges that he was shot four times in the course of being
arrested by the individual defendants, even though Plaintiff
was in the process of surrendering himself. See,
e.g., Docket No. 1-1 at 5. Plaintiff further alleges
that at least one of the individual defendants called him a
racial slur, and thus that the decision to shoot him was
racially motivated. See, e.g., id. at 4.
Allegations that law enforcement officers used excessive
force in arresting a plaintiff may establish a violation of
the Fourth Amendment, which may in turn form the basis of a
§ 1983 claim. See, e.g., Gravelet-Blondin
v. Shelton, 728 F.3d 1086, 1090-91 (9th Cir. 2013).
Additionally, a claim of discrimination may establish a
§ 1983 equal protection violation. See, e.g.,
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998). Though the complaint lacks some details, such as the
date of the alleged incident, the Court finds the allegations
in Plaintiff's complaint regarding excessive force and
racial discrimination sufficient for screening purposes.
Court cannot determine whether Plaintiff intended to bring
claims against the individual defendants in addition to the
Fourth and Fourteenth Amendment claims outlined above.
See, e.g., Docket No. 1-1 at 4 (referring to an
alleged due process violation). Having found that
Plaintiff's complaint is sufficient for screening
purposes with respect to at least two claims against the
individual defendants, however, the Court declines to address
any additional claims that may be present in the complaint.
See, e.g., Jenkins v. Lab. Corp. of Am.,
2013 U.S. Dist. Lexis 118008, at *6 n.1 (D. Nev. Aug. 20,
2013). Moreover, nothing herein should be construed as
preventing the individual defendants from filing a motion to
dismiss once they have appeared on any grounds they deem
appropriate, including whether Plaintiff has sufficiently
stated a claim. See Teahan v. Wilhelm, 481 F.Supp.2d
1115, 1119 (S.D. Cal. 2007); see also Bem v. Clark Coutny
Sch. Dist., 2015 U.S. Dist. Lexis 7757, at *6 n.1 (D.
Nev. Jan. 21, 2015).
also names the Las Vegas Metropolitan Police Department as a
defendant, ostensibly because of its connection to the police
officers named as defendants in this action. Docket No. 1-1
at 1. 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. Cnty. 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
department 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, 1665 (D. Nev. 1998); see also Wallace v. City of
North Las Vegas, 2011 WL 2971241, at *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 Dep't, 2008 WL 608641, at *9
(D. Nev. 2008) (“Nevada does not grant authorization of
a police department to sue or be sued”). Thus,
Plaintiff fails to state a claim upon which relief can be
granted as to Defendant Las Vegas Metropolitan Police
also appears to allege that University Medical Center
(“UMC”) treated him at some point after he was
shot. Docket No. 1-1 at 6. Plaintiff submits that UMC
provided him with inadequate medical care. Id.
Plaintiff further asserts that the Clark County Detention
Center (“CCDC”) subsequently neglected his
medical needs, and continues to do so. Id. The
actions of physicians under contract with the state to
provide medical care to prisoners may constitute state
action. See, e.g., West v. Adkins, 487 U.S.
42, 54 (1988). Additionally, a prisoner's allegations of
medical neglect may establish a violation of the Eighth
Amendment, which may in turn form the basis of a § 1983
claim. See, e.g., Peralta v. Dillard, 744
F.3d 1076, 1081-82 (9th Cir. 2014). However, Plaintiff fails
to fully explain the circumstances of his treatment at UMC.
Plaintiff also fails to name any of the individuals
responsible for the alleged inadequate medical care and
medical neglect as defendants in this action. See
Docket No. 1-1 at 1. Thus, Plaintiff fails to state a claim
upon which relief can be granted as to his claim for medical
IT IS ORDERED that:
1. Plaintiff is granted leave to file an amended complaint to
cure the deficiencies noted above. If Plaintiff chooses to
file an amended complaint he is advised that an amended
complaint supersedes (replaces) the original complaint and,
thus, the amended complaint must be complete in itself.
See Hal Roach Studios, Inc. v. Richard Feiner & Co.,
Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that
“[t]he fact that a party was named in the original
complaint is irrelevant; an amended pleading supersedes the
original”); see also Lacey v. Maricopa Cnty.,
693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims
dismissed with prejudice, a plaintiff is not required to
reallege such claims in a subsequent amended complaint to
preserve them for appeal). Plaintiff's amended complaint
must contain all claims, defendants, and factual allegations
that Plaintiff wishes to pursue in this lawsuit.
2. If Plaintiff chooses to file an amended complaint curing
the deficiencies, as outlined in this order, Plaintiff shall
file the amended complaint no later than February 17, 2017.
If Plaintiff chooses not to file an amended complaint curing
the stated deficiencies, this action shall proceed
immediately on the ...