United States District Court, D. Nevada
HOFFMAN, JR, UNITED STATES MAGISTRATE JUDGE
before the court is pro se Plaintiff Gervonn McCurdy's
application to proceed in forma pauperis (ECF No.
4), filed on June 19, 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. Further, a Court may dismiss a
claim as factually frivolous if its allegations are
“clearly baseless, a category encompassing allegations
that are fanciful, fantastic, and delusional.”
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)
(internal citations and punctuation omitted). 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's complaint (ECF No. 1) brings an action under
42 U.S.C. § 1983, alleging that his constitutional
rights were have been denied to him, beginning on March 4,
2017, by the actions of the Las Vegas Metro Police
Department. Plaintiff's claim is largely a series of
quotations and legal citations to court cases regarding
probable cause and hearsay, but he does not provide any
allegations linking his claim to these cases. Plaintiff's
claim appears to stem from his arrest, which Plaintiff claims
was based on hearsay and therefore not supported by probable
cause. Although unclear, it also appears that Plaintiff
claims that certain prior statements he made were used
against him in violation of his rights. Plaintiff does not
specify what statements led to his arrest, or why they are
hearsay. He also does not specify what statements he made, or
how they were used against him. Plaintiff's complaint is
devoid of any meaningful facts to support his legal
conclusions. The Court also notes that it appears that
Plaintiff's claim would amount to a challenge to the
validity of his conviction. However, “if a criminal
conviction arising out of the same facts [as a § 1983
claim] stands and is fundamentally inconsistent with the
unlawful behavior for which section 1983 damages are sought,
the 1983 action must be dismissed.” Smithart v.
Towery, 79 F.3d 951, 952 (9th Cir. 1996). The Court
therefore will therefore 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.
THEREFORE ORDERED that Plaintiffs Application for Leave to
Proceed In Forma Pauperis (ECF No. 4) is GRANTED.
Plaintiff will not be required to pay the filing fee in this
action. Plaintiff is permitted to maintain this action to
conclusion without the necessity of prepayment of any
additional fees or costs or the giving of a security for fees
or costs. This order granting leave to proceed in forma
pauperis does not extend to the issuance of subpoenas at
FURTHER ORDERED that the Clerk of the Court must file
Plaintiffs complaint (ECF No. 1).
FURTHER ORDERED that the complaint (ECF No. 1) is DISMISSED
without prejudice for failure to state a claim upon which