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Albanese v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

June 15, 2017

GRACE ALBANESE, Plaintiff,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Defendant.

          ORDER AND ORDER TO SHOW CAUSE APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF NO. 1) AND COMPLAINT (ECF NO. 1-1)

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         Before the Court are Plaintiff Grace Albanese's Application to Proceed In Forma Pauperis (ECF No. 1) and Complaint (ECF No. 1-1). For the reasons stated below, the Court orders Albanese to show cause why she should not be declared a vexatious litigant.

         I. In Forma Pauperis Application

         Under 28 U.S.C. § 1914(a), a filing fee is required to commence a civil action in federal court. Courts may authorize the commencement of an action without prepayment of fees and costs or security therefor, by a person who submits an affidavit that includes a statement showing the person is unable to pay such costs. See 28 U.S.C. § 1915(a)(1). The standard governing in forma pauperis eligibility under 28 U.S.C. § 1915(a)(1) is “unable to pay such fees or give security therefor.” Id. Determining what constitutes “unable to pay” or unable to “give security therefor” and, therefore whether to allow a plaintiff to proceed in forma pauperis, is left to the discretion of the courts, based on the information submitted by the plaintiff. See, e.g., Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980) (“A district court has discretion to grant or deny an in forma pauperis petition filed under [§] 1915.”); Fridman v. City of New York, 195 F.Supp.2d 534, 536 (S.D.N.Y.), aff'd, 52 Fed.Appx. 157 (2nd Cir. 2002).

         Albanese has requested authority to proceed in forma pauperis and submitted the required affidavit. See ECF No. 1. Albanese brings in a small amount every week from “panhandling.” Id. She has no other income or assets. Id. The Court finds that she is unable to pay fees and costs. The Court grants her application to proceed in forma pauperis.[1]

         II. Screening the Complaint

         Upon granting a request to proceed in forma pauperis, a court must 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. § 1915(e)(2). In screening the complaint, the court applies the same standard typically used to assess motions to dismiss: a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). The plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. In considering whether the plaintiff has stated a claim upon which relief can be granted, all material allegations in the complaint are accepted as true and are to be construed in the light most favorable to the plaintiff. See Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980); see also 5B Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, § 1357 (3d ed. 2010).

         Allegations of a pro se complaint are held to less stringent standards than formal pleading drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). When a court dismisses a complaint under § 1915(e), 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) (citation omitted). Pro se litigants, however, “should not be treated more favorably than parties with attorneys of record, ” rather, they must follow the same rules of procedure that govern other litigants. See Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

         A. The Instant Complaint and History

         a. Albanese's Actions Before This Court

         Since March 2016, Albanese has filed 28 federal cases in the district of Nevada, 26 of which are currently ongoing, and 5 of which are before this Court.[2] In 15 of Albanese's cases, she has sued the same defendant-Las Vegas Metropolitan Police Department (“Metro”). Many of Albanese's actions assert the same set of allegations: unknown persons stalk or spy on Albanese in her room and when she travels about, sometimes using listening devices or even hacking into her phone, but federal and state law enforcement ignore her pleas for help and have not captured the wrongdoers. Albanese asserts similar legal claims in all her cases.

         In the instant action, Albanese brings suit against Metro for (1) allegedly violating her civil rights under 42 U.S.C. § 1983 by denying Albanese equal protection “for allowing the same male to stalk … [her] on a daily basis;” (2) public corruption; and (3) obstruction of justice.[3] See ECF No. 1-1. The complaint states in its entirety the following:

The Las Vegas Police Department on June 8, 2017 allowed a person of interest to continue stalking me. Desert Inn / Paradise 10:43 am he is so confident he is not going to be arrested for stalking he even waits for me to catch up with him then he departs the area as I am calling the police. The police who instead of catching up with the repeat stalker (10:34 am [unintelligible word] / Desert Inn); 10:30 am Cambridge / Desert Inn; the police are driving pass me with sirens blarring 11:27 am North on Paradise @ Convention Center as the stalker gets away to stalk me on my return trip home. Every day when I call for help the police never arrive to help.

Id. The claims and factual allegations raised in Albanese's complaint against Metro are identical to those raised in other actions brought by Albanese. To illustrate, the Court has included the following examples.

         In Albanese v. Las Vegas Metropolitan Police Department, Albanese sued Metro for violation of her civil rights under 42 U.S.C. § 1983 by denying her equal protection, and obstruction of justice. See Albanese v. Las Vegas Metropolitan Police Department, Case No. 2:17-cv-01285-JCM-VCF, ECF no. 1-1, appeal docketed, no. 17-16127 (9th Cir. May 31, 2017). The complaint in that case states in its entirety the following:

Denying me equal protection under the law by not informing me 1107 E-Desert Inn # 3 and 9 are observing me in my room. And that listening device is being use by them to spy on me. Obstruction of justice by not informing law enforcement that Apts. 3 and 9 are ...

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