United States District Court, D. Nevada
JAMES E. COHAN, Plaintiffs,
JOSEPH LOMBARDO, et al., Defendants.
J. KOPPE, UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 1915 Plaintiff is proceeding in this
action pro se and has requested authority pursuant
to 28 U.S.C. § 1915 to proceed in forma
pauperis. Docket No. 4. Plaintiff also submitted a
complaint. Docket No. 1-1.
In Forma Pauperis Application
has submitted the affidavit required by § 1915(a).
Docket No. 4. The Court concludes that Plaintiff has shown an
inability to prepay fees and costs or give security for them.
Accordingly, the request to proceed in forma
pauperis will be granted pursuant to 28 U.S.C. §
1915(a). The Clerk's Office is further
INSTRUCTED to file the complaint on the
docket. The Court will now review Plaintiff's complaint.
granting an application to proceed in forma
pauperis, courts additionally 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. 28 U.S.C.
§ 1915(e)(2). When a 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 Fed.R.Civ.P.
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
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Although Fed.R.Civ.P. 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, 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.
Secondly, 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
on the caption of his complaint, Plaintiff is filing a cause
of action under 42 U.S.C. § 1983. To state a claim under
section 1983, a plaintiff must allege a person acting under
the color of state law violated a right secured by the
Constitution. See West v. Atkins, 487 U.S. 42, 48
(1988) (citation omitted). Plaintiff's complaint includes
an anecdote of an encounter with Defendant Sergeant Rick
Binyon, during which Plaintiff was issued a ticket as a
“non complient [sic] homeless sex
offender” for failure to register. Docket No. 1-1 at 2.
Plaintiff also includes an anecdote of an encounter with all
four Defendants, during which Plaintiff was arrested,
spent five days in Clark County Jail, appeared in court and
was informed charges were not being filed against him.
See Id. at 3. Plaintiff makes a conclusory statement
that Defendants' actions violated his civil rights and
“offend the Constitution of the United States.”
Docket No. 1-1 at 6. While Plaintiff claims Defendants acted
under the color of law in various situations, he fails to
state which constitutional rights, if any, Defendants
upon Plaintiff's factual allegations, he appears to
instead state claims for slander, libel, and defamation.
Plaintiff claims a chain of events resulted from the display
of information on the lvmpd.com website about his
conviction for sexual assault in Arizona. Docket No. 1-1.
Plaintiff denies this conviction and concludes that an
(unidentified) employee within the Las Vegas Metropolitan
Police Department (“LVMPD”) maliciously entered
the information of his conviction on the website.
initial matter, the Court notes that Plaintiff has improperly
sued Clark County Sheriff Joseph Lombardo. "Liability
under section 1983 arises only upon a showing of personal
participation [in the alleged misconduct] by the
defendant." Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989). Plaintiff's only mention of Defendant
Lombardo is in his allegation of the misconduct of an
unidentified “employee of the Las Vegas Metropolitan
Police Department who is under the control of Clark County
Sheriff Joseph Lambardo [sic].” Docket No. 1-1
Plaintiff does not claim that Defendants Binyon, Smith, or
Newcomb played any role in entering the alleged false
information regarding Plaintiff's sexual assault
conviction into the lvmpd.com website, which is the
crux of the complaint. Instead, Plaintiff alleges an
unidentified LVMPD employee entered information about
Plaintiff's sexual assault conviction onto the
lvmpd.com website. Docket No. 1-1 at 5. The
availability of this information allegedly led to
Plaintiff's eviction in June 2016, his ticket from
Defendant Binyon on October 8, 2016, and his arrest by