United States District Court, D. Nevada
ORDER DEFENDANT'S MOTION TO DISMISS (ECF NO.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss filed by the Defendant
Logisticare Solutions LLC (“Defendant”). ECF No.
20. The Court has reviewed the parties' papers and for
the reasons discussed below, the Defendant's Motion to
Dismiss is granted.
Cedric Greene filed this Amended Complaint pro se on
July 24, 2015, after this Court granted him 30 days leave to
amend his Complaint to establish this Court as proper venue.
ECF No. 18. In his Amended Complaint, Greene addressed venue
but did not include any cause of action or facts interpreted
liberally that could be inferred to constitute a cause of
action. Id. The Court will briefly summarize
Greene's allegations in chronological order.
alleges in his Complaint that sometime before March 2015, the
Defendant was responsible for transporting Greene to and from
his home to his doctor's office. ECF No. 5 at 1-2. Greene
alleges that on at least one occasion the Defendant sent a
taxi service instead of a shuttle-van to transport Greene
from his home to his doctor's office and failed to notify
Greene that his pickup time had been changed. ECF No. 5 at
1-2. Greene alleges that as a result of the Defendant's
utilization of a taxi service and poor communication Greene
suffered deprivation or delay of his medical care in
violation of his rights under the Americans with Disabilities
Act. ECF No 5 at 1-2.
filed a Complaint and Motion for Leave to file in forma
pauperis on March 23, 2015 in the United States District
Court, which was denied without prejudice. ECF No. 1. Greene
re-applied for leave to file his complaint in forma
pauperis on April 8, 2015. ECF No. 2. Magistrate Judge
Koppe approved Greene's second application to proceed
in forma pauperis, at which time Judge Koppe
reviewed Greene's Complaint and recommended that it be
dismissed without prejudice. ECF No. 4 at 4. Defendant filed
a motion to dismiss in response to Greene's complaint on
April 14, 2015. ECF No. 6. On July 8, 2015, the Court adopted
Judge Koppe's recommendation to dismiss Greene's
Complaint and granted Greene 30 days to amend his Complaint
to establish that venue is proper in this Court. ECF No. 17
at 4. On July 24, 2015 Greene filed an Amended Complaint (ECF
No. 18) and the Defendant filed a Motion to Dismiss on August
13, 2015. ECF No. 20.
Motion to Dismiss under Fed.R.Civ.P. 12(b)(6)
initial pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a). The court may dismiss a
complaint for failing to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to
dismiss, “[a]ll well-pleaded allegations of material
fact in the complaint are accepted as true and are construed
in the light most favorable to the non-moving party.”
Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017,
1019 (9th Cir. 2013) (citations omitted). In addition,
documents filed by a plaintiff who is proceeding without
counsel (as is the case here) must be liberally construed,
and a pro se complaint must be “held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)) (citations and internal quotation marks omitted);
see also Butler v. Long, 752 F.3d 1177, 1180 (9th
survive a motion to dismiss, a complaint need not contain
“detailed factual allegations, ” but merely
asserting “‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action'” is not sufficient. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
other words, a claim will not be dismissed if it contains
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face, ”
meaning that the court can reasonably infer “that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citation and internal
quotation marks omitted). In elaborating on the pleading
standard described in Twombly and Iqbal,
the Ninth Circuit has held that for a complaint to survive
dismissal, the plaintiff must allege non-conclusory facts
that, together with reasonable inferences from those facts,
are “plausibly suggestive of a claim entitling the
plaintiff to relief.” Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
a general rule, a district court may not consider any
material beyond the pleadings in ruling on a Rule 12(b)(6)
motion.” Lee v. City of Los Angeles, 250 F.3d
668, 688 (9th Cir. 2001) (citation and internal quotation
marks omitted). In deciding a motion to dismiss under Rule
12(b)(6), the district court's review is limited to the
complaint itself; the court does not decide at this stage
whether the plaintiff will ultimately prevail on her claims,
but rather whether he or she may offer evidence to support
those claims. Cervantes v. City of San Diego, 5 F.3d
1273, 1274 (9th Cir. 1993) (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).
Dismissal With Prejudice
district court has the power to dismiss a claim with
prejudice if the Plaintiff fails to comply with the rules of
pleading. Fed.R.Civ.P. 41(b); accord Nevijel v. N. Coast
Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
Dismissal with prejudice is appropriate when a plaintiff
“fail[s] to obey a court order to file a short and
plain statement of the claim as required by Rule 8[, ]”
McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir.
1996), or when a plaintiff's complaints are so incoherent
or unintelligible as to make it “impossible ...