United States District Court, D. Nevada
J. KOPPE United States Magistrate Judge
Grace Albanese, proceeding in this action pro se,
has requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis, and submitted a complaint
on May 8, 2017. Docket Nos. 1, 1-1.
In Forma Pauperis Application
has submitted the affidavit required by § 1915 showing
an inability to prepay fees and costs or give security for
them. Accordingly, Plaintiff's request to proceed in
forma pauperis will be granted pursuant to 28 U.S.C.
§ 1915(a). The Court will now review Plaintiff's
Screening the Complaint
granting a request to proceed in forma pauperis, the
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
the 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 Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Although Rule
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.
Additionally, 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
instance, Plaintiff has submitted a one-page complaint that
mentions “obstruction of justice” and
“equal protection under the law.” See
Docket No. 1-1. Plaintiff fails to cite any specific statutes
or constitutional provisions. Id. Further, she fails
to set forth in sufficient detail the facts underlying this
action. Id. As a preliminary matter, therefore,
Plaintiff's complaint fails to satisfy Rule 8's basic
requirements and therefore fails to state a claim upon which
relief can be granted.
the sole defendant that Plaintiff names is the Las Vegas
Metropolitan Police Department (“LVMPD”).
Id. The Ninth Circuit has held that, pursuant to
Federal Rule of Civil Procedure 17(b), state law determines
whether a department of a municipality may sue or be sued.
See, e.g., Streit v. Cty. of Los Angeles,
236 F.3d 552, 565 (9th Cir. 2001). LVMPD 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 Cty. Sheriff's
Dep't, 17 F.Supp.2d 1162, 1665 (D. Nev. 1998);
see also Wallace v. City of N. 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. N. 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 has not
demonstrated that LVMPD is a proper defendant in this
action. The Court will give Plaintiff an
opportunity to cure the aforementioned deficiencies.
IT IS ORDERED that:
Plaintiff's request to proceed in forma pauperis
is GRANTED. Plaintiff shall not be required
to pay the filing fee of four hundred dollars ($400.00).
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