United States District Court, D. Nevada
SCREENING ORDER AND REPORT AND
Hoffman, Jr. United States Magistrate Judge.
before the court is pro se Plaintiff Brian Borenstein's
application to proceed in forma pauperis (ECF No.
1), filed on May 11, 2017. Also before the court are various
case-initiating documents (ECF No. 1-2), filed on the same
date. Also before the court is Plaintiff's motion to stay
eviction (ECF No. 3), filed on May 15, 2017.
IN FORMA PAUPERIS APPLICATION
has submitted the declaration required by 28 U.S.C. §
1915(a) 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.
granting a request to proceed in forma pauperis, a
court must screen the complaint under 28 U.S.C. §
1915(e)(2). In screening the complaint, a court must identify
cognizable claims and dismiss claims that are frivolous,
malicious, file to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Dismissal for failure to state a claim under §
1915(e)(2) incorporates the standard for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). To survive § 1915 review, a complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The court liberally construes pro se complaints
and may only dismiss them “if it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave to amend
the complaint with notice regarding the complaint's
deficiencies. Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995).
Plaintiff did not submit a complaint to the court. Instead,
he filed various documents including a letter to Senator
Masto stating that he is disabled, that he is in the process
of being evicted from his apartment at the Emerald Suites,
and describing issues with methamphetamine labs and other
problems he has encountered while living there. (See
ECF No. 1-1 at 1.) He also submitted a five-day notice to pay
rent, a state court docket sheet relating to summary eviction
proceedings brought by Emerald Suites against Plaintiff,
Social Security records, a receipt of a payment to Emerald
Suites, TD Ameritrade account statements, and various other
documents. (Id. at 2-29.) The court construes this
assortment of documents as a complaint.
construing these documents, the court understands Plaintiff
to be attempting to bring claims related to an eviction from
his apartment at the Emerald Suites. Given that Plaintiff did
not file a formal complaint, however, the court has not been
provided with any factual allegations, such as the general
circumstances surrounding the eviction or the reasons
Plaintiff contends it was unlawful. Additionally, Plaintiff
does not include any statement of the grounds for the
court's jurisdiction in this case. Without factual
allegations regarding the underlying dispute between
Plaintiff and Emerald Suites, the court cannot evaluate
whether Plaintiff's complaint states a claim against this
party. The court therefore will recommend dismissal of
Plaintiff's complaint without prejudice for the Plaintiff
to file an amended complaint.
Plaintiff chooses to file an amended complaint, the document
must be titled “Amended Complaint.” The amended
complaint must contain a short and plain statement describing
the underlying case, the defendant's involvement in the
case, and the approximate dates of its involvement.
See Fed. R. Civ. P. 8(a)(2). Although the Federal
Rules of Civil Procedure adopt a flexible pleading standard,
Plaintiff still must give a defendant fair notice of the
Plaintiff's claims against it and Plaintiff's
entitlement to relief.
amended complaint also must contain a short and plain
statement of the grounds for the court's jurisdiction.
See Fed. R. Civ. P. 8(a)(1). Regarding jurisdiction,
Plaintiff is advised that “[f]ederal district courts
are courts of limited jurisdiction, possessing only that
power authorized by Constitution and statute.” K2
Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024,
1027 (9th Cir. 2011) (quotation omitted). Federal district
courts “have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. Federal district
courts have original jurisdiction over civil actions in
diversity cases “where the matter in controversy
exceeds the sum or value of $75, 000” and where the
matter is between “citizens of different States.”
28 U.S.C. § 1332(a). “Section 1332 requires
complete diversity of citizenship; each of the plaintiffs
must be a citizen of a different state than each of the
defendants.” Morris v. Princess Cruises, Inc.,
236 F.3d 1061, 1067 (9th Cir. 2001).
Plaintiff is advised that if he files an amended complaint,
the original complaint (ECF No. 1-1) no longer serves any
function in this case. As such, the amended complaint must be
complete in and of itself without reference to prior
pleadings or other documents. The court cannot refer to a
prior pleading or other documents to make Plaintiff's
amended complaint complete.
MOTION TO STAY EVICTION
motion to stay the eviction states that he is disabled and
requests that the court stay his eviction under the ADA. He
further states that he cannot write well and that he has no
help. To the extent Plaintiff requests injunctive relief in
the form of an order staying his eviction, the court will
recommend that this request be ...