United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION
FOLEY, JR. United States Magistrate Judge.
matter comes before the Court on the screening of
Plaintiff's Amended Complaint (ECF No. 17), filed on
October 17, 2016. The Court granted Plaintiff in forma
pauperis status on October 3, 2016. See (ECF
Screening the Complaint
granting a request to proceed in forma pauperis, a
court must additionally screen a complaint pursuant to 28
U.S.C. § 1915(e). Specifically, 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/third party plaintiff who is immune from
such relief. 28 U.S.C. § 1915(e)(2). A complaint, or
portion thereof, should be dismissed for failure to state a
claim upon which relief may be granted “if it appears
beyond a doubt that the plaintiff can prove no set of facts
in support of his claims that would entitle him to
relief.” Buckey v. Los Angeles, 968 F.2d 791,
794 (9th Cir. 1992). A complaint may be dismissed as
frivolous if it is premised on a nonexistent legal interest
or delusional factual scenario. Neitzke v. Williams,
490 U.S. 319, 327-28 (1989). Moreover, “a finding of
factual frivolousness is appropriate when the facts alleged
rise to the level of the irrational or the wholly incredible,
whether or not there are judicially noticeable facts
available to contradict them.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992). 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).
Court shall liberally construe a complaint by a pro se
litigant. Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 2007). This is especially important for civil
rights complaints. Ferdik v. Bonzelet, 963 F.2d
1258, 1261 (9th Cir. 1992). However, a liberal construction
may not be used to supply an essential element of the claim
absent from the complaint. Bruns v. Nat'l Credit
Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997)
(quoting Ivey v. Board of Regents, 673 F.2d 266, 268
(9th Cir. 1982)).
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. Twombley, 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, 129 S.Ct. 1937, 1949 (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, 129 S.Ct. at 1950. Mere
recitals of the elements of a cause of action, supported only
by conclusory allegations, do not suffice. Id. at
1949. Secondly, where the claims in the complaint have not
crossed the line from plausible to conceivable, the complaint
should be dismissed. Twombly, 550 U.S. at 570.
Court originally dismissed Plaintiff's one-page complaint
because it provided the Court with no factual basis for her
claims. See Order (ECF No. 13). Plaintiff filed an
amended complaint pursuant to 42 U.S.C. § 1983 against
the Las Vegas Metropolitan Police Department
(“LVMPD”) and Doug Gillespie, in his official
capacity, alleging that her Fourth, Fifth, Ninth and
Fourteenth Amendment rights were violated. Plaintiff asserts
that Defendant Gillespie caved into pressure by Homeland
Security who was working with members of LVMPD to remove
Plaintiff from Las Vegas. Officers from LVMPD allegedly
stalked Plaintiff and wire-tapped her telephone. Plaintiff
requests damages from Defendants for their “utter lack
of regard [of] my rights and the rights of my daughter who
suffered as well.” Amended Complaint (ECF No.
17), pg. 5.
Municipal Entity Liability Under § 1983 -
1983 suits against local governments alleging constitutional
rights violations by government officials cannot rely solely
on respondeat superior liability. See Whitaker v.
Garcetti, 486 F.3d 572, 581 (9th Cir. 2007); see
also Monell v. Dep't of Soc. Servs., 436 U.S. 658,
691 (1978). A plaintiff can bring a § 1983 action
against a local government entity if the plaintiff can show
that the entity had an established policy or custom that
caused employees who implemented the policy or custom to
violate the constitutional rights of others. Monell,
436 U.S. at 690-92; see also, Van Ort v. Estate of
Stanewich, 92 F.3d 831 (9th Cir. 1996). However, absent
such a policy or custom, a local government entity cannot be
held liable solely because one of its employees commits an
unlawful wrong against another. Id. at 691. Here,
from what the Court can ascertain, Plaintiff asserts that
LVMPD violated her rights because they stalked her on
numerous occasions. The rest of Plaintiff's amended
complaint does not make sense and fails to state specific
dates on which the alleged constitutional violations took
place. Moreover, Plaintiff does not demonstrate that
LVMPD's conduct was driven by a policy or custom
implemented by LVMPD and that the policy or custom was the
driving force behind the alleged violations of
Plaintiff's constitutional rights. Therefore, the Court
will dismiss the § 1983 claim against LVMPD without
prejudice, and will give Plaintiff leave to amend her amended
complaint to state sufficient facts to state a claim, if he
is able to do so.
Municipal Employee Liability Under § 1983
officials sued in their official capacity for damages are not
persons for purposes of § 1983. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 69 n. 24
(1997). Official-suits filed against state officials are
merely an alternative way of pleading an action against the
entity of which the defendant is an officer. See Hafer v.
Melo, 502 U.S. 21, 25 (1991). Therefore, in an
official-capacity suit, the plaintiff must demonstrate that a
policy or custom of the governmental entity of which the
official is an agent was the moving force behind the
violation. Id.; See also Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658, 690-92
(1978). Defendant Doug Gillespie was a state official at the
times discussed in Plaintiff's complaint and he is
therefore not a person for § 1983 purposes. As a result,
the Court will recommend that Plaintiff's claims against
Defendant Gillespie be dismissed with prejudice.
Plaintiff elects to proceed in this action by filing an
amended complaint, she is informed that the court cannot
refer to a prior pleading in order to make her amended
complaint complete. Local Rule 15-1 requires that an amended
complaint be complete in itself without reference to any
prior pleading. This is because, as a general rule, an
amended complaint supersedes the original complaint. See
Valdez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir.
2011); see Loux v. Rhay, 375 F.2d 55, 57 (9th
Cir.1967). Once Plaintiff files an amended complaint, the
original pleading no longer serves any function in the case.
Therefore, in an amended complaint, as in an original
complaint, each claim and the involvement of each defendant
must be sufficiently alleged. Plaintiff is advised that
litigation will not commence upon the filing of an amended
complaint. Rather, the Court will conduct an additional
screening of the amended complaint pursuant to 28 U.S.C.
§ 1915(e). If Plaintiff fails to file an amended
complaint or fails to cure the deficiencies identified above,
the Court will recommend that ...