United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE
before the court is incarcerated pro se Plaintiff Barren Mar
Thuna's application to proceed in forma pauperis
(ECF No. 6), filed on November 8, 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).
the Court must take special note of claims brought under 42
U.S.C. § 1983 that concern conduct related to a
plaintiff's criminal conviction. “[I]f 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) (citing
Heck v. Humphrey, 512 U.S. 477, 114 (1994)). The
Heck rule bars a plaintiff from bringing a suit
under § 1983 if a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence. See Whitaker v. Garcetti, 486 F.3d 572,
581 (9th Cir. 2007).
Plaintiff's initiating documents include a document
labeled as a complaint (ECF No. 1-1), but the text of this
document contains only a “Notice of intent to file 1983
Civil Rights Complaint.” It appears that Plaintiff
intends to file suit against the Clark County Clerk of
Courts. However, the complaint is only a single page and
contains no allegations of any particular dates, and the only
fact asserted is that “all violations occurred in Clark
County, Nevada.” Plaintiff's complaint does not
allege any substantive facts to support her cause of action.
The Court will therefore dismiss Plaintiff's complaint
with leave to amend.
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 she 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. 6) 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 ...