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Cohan v. Lombardo

United States District Court, D. Nevada

October 3, 2017

JAMES E. COHAN, Plaintiffs,
JOSEPH LOMBARDO, et al., Defendants.



         Pursuant 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.

         I. In Forma Pauperis Application

         Plaintiff 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.

         II. Screening Complaint

         Upon 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).

         Rule 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 Iqbal).

         A. Federal Claims

         Based 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, [1] 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 violated.

         B. State Claims

         Based 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 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. Id.

         1. Improper Defendants

         As an 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 at 5.

         Additionally, 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 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 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 ...

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