United States District Court, D. Nevada
CHARLES N. BELSSNER, Plaintiff,
LAS VEGAS METROPOLITAN POLICE DEPARTMEN., Defendant.
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Application for
Leave to Proceed In Forma Pauperis (ECF No. 1),
filed on July 24, 2017.
complaint alleges that he approached a police officer stopped
in her vehicle to report a motorist driving without using
headlights. He further alleges that he was restrained in
handcuffs by police officers, that the police officers
accused him of banging on the vehicle driving without
headlights, and that the police officers issued him a
Application to Proceed in Forma Pauperis
filed this instant action and attached a financial affidavit
to his application and complaint as required by 28 U.S.C.
§ 1915(a). Reviewing Plaintiff's financial affidavit
pursuant to 28 U.S.C. § 1915, the Court finds that
Plaintiff is unable to pre-pay the filing fee. As a result,
Plaintiff's request to proceed in forma pauperis
in federal court is granted.
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.
Subject Matter Jurisdiction
district courts are courts of limited jurisdiction, deriving
their power to hear cases from specific congressional grants
of jurisdiction. United States v. Sumner, 226 F.3d
1005, 1009 (9th Cir. 2000). Limited jurisdiction means that
federal courts (1) possess only that power authorized by the
Constitution or a specific federal statute and (2) do not
have jurisdiction over a matter simply because the alleged
wrong occurred in the same city, county, or state in which
the court sits. See U.S. Const. art. III, § 2,
cl. 1. Generally, subject matter jurisdiction may derive from
diversity of the parties, which are “civil actions
where the matter in controversy exceeds the sum or value of
$75, 000 ... and is between citizens of different States,