United States District Court, D. Nevada
who is an inmate in the custody of the Clark County Detention
Center (“CCDC”), has submitted a civil rights
complaint pursuant to 42 U.S.C. § 1983 and has filed an
application to proceed in forma pauperis, a motion
for appointment of counsel, a motion for preliminary
injunction, and a motion for temporary restraining order.
(ECF Nos. 1, 1-1, 1-2, 1-3, 3, 4, 5). The court now addresses
the application to proceed in forma pauperis,
screens plaintiff's civil rights complaint pursuant to 28
U.S.C. § 1915A, and addresses the remaining motions.
IN FORMA PAUPERIS APPLICATION
the court is plaintiff's application to proceed in
forma pauperis. (ECF No. 1). Based on the information
regarding plaintiff's financial status, the court finds
that plaintiff is not able to pay an initial installment
payment toward the full filing fee pursuant to 28 U.S.C.
§ 1915. Plaintiff will, however, be required to make
monthly payments toward the full $350.00 filing fee when he
has funds available.
courts must conduct a preliminary screening in any case in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity. See 28
U.S.C. § 1915A(a). In its review, the court must
identify any cognizable claims and dismiss any claims that
are frivolous, malicious, fail to state a claim upon which
relief may be granted or seek monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. § 1915A(b)(1), (2). Pro se pleadings,
however, must be liberally construed. Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990). To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege two essential elements: (1) the
violation of a right secured by the Constitution or laws of
the United States, and (2) that the alleged violation was
committed by a person acting under color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
addition to the screening requirements under § 1915A,
pursuant to the Prison Litigation Reform Act (PLRA), a
federal court must dismiss a prisoner's claim, if
“the allegation of poverty is untrue, ” or if the
action “is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a
complaint for failure to state a claim upon which relief can
be granted is provided for in Federal Rule of Civil Procedure
12(b)(6), and the court applies the same standard under
§ 1915 when reviewing the adequacy of a complaint or an
amended complaint. 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).
under Rule 12(b)(6) is essentially a ruling on a question of
law. See Chappel v. Lab. Corp. of America, 232 F.3d
719, 723 (9th Cir. 2000). Dismissal for failure to state a
claim is proper only if it is clear that the plaintiff cannot
prove any set of facts in support of the claim that would
entitle him or her to relief. See Morley v. Walker,
175 F.3d 756, 759 (9th Cir. 1999). In making this
determination, the court takes as true all allegations of
material fact stated in the complaint, and the court
construes them in the light most favorable to the plaintiff.
See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th
Cir. 1996). Allegations of a pro se complainant are
held to less stringent standards than formal pleadings
drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5,
9 (1980). While 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
a reviewing court should “begin by identifying
pleadings [allegations] that, because they are no more than
mere conclusions, are not entitled to the assumption of
truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). “While legal conclusions can provide the
framework of a complaint, they must be supported with factual
allegations.” Id. “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id.
“Determining whether a complaint states a plausible
claim for relief . . . [is] a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id.
all or part of a complaint filed by a prisoner may therefore
be dismissed sua sponte if the prisoner's claims
lack an arguable basis either in law or in fact. This
includes claims based on legal conclusions that are untenable
(e.g., claims against defendants who are immune from suit or
claims of infringement of a legal interest which clearly does
not exist), as well as claims based on fanciful factual
allegations (e.g., fantastic or delusional scenarios).
See Neitzke v. Williams, 490 U.S. 319, 327-28
(1989); see also McKeever v. Block, 932 F.2d 795,
798 (9th Cir. 1991).
SCREENING OF COMPLAINT
has filed a 337-page complaint and sues over 26 defendants
and multiple Doe defendants consisting of Las Vegas
Metropolitan Police Department (“LVMPD”)
employees and Clark County employees. (See ECF Nos.
1-1, 1-2, 1-3). The court dismisses the complaint in its
entirety, without prejudice, with leave to amend. The court
now advises plaintiff of the following requirements under the
Federal Rules of Civil Procedure in order to facilitate the
filing of a properly formatted first amended complaint.
Plaintiff is advised that the failure to comply with these
rules while drafting and filing his first amended complaint
may result in this action being dismissed.
plaintiff's first amended complaint must be short and
plain. Pursuant to Federal Rule of Civil Procedure 8,
plaintiff's first amended complaint must contain “a
short and plain statement of the claim showing that
[plaintiff] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). “Each allegation must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1). “A party must
state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of
circumstances.” Fed.R.Civ.P. 10(b). “[E]ach claim
founded on a separate transaction or occurrence . . . must be
stated in a separate count.” Id. A 337-page
complaint is not “short and plain.”
plaintiff may not raise multiple unrelated claims in a single
lawsuit. Plaintiff is advised that the Federal Rules of Civil
Procedure do not permit a litigant to raise unrelated claims
involving different defendants in a single action. A basic
lawsuit is a single claim against a single defendant. Federal
Rule of Civil Procedure 18(a) allows a plaintiff to add
multiple claims to the lawsuit when those claims are against
the same defendant. Federal Rule of Civil Procedure 20(a)
allows a plaintiff to add multiple parties to a lawsuit where
the right to relief arises out of the “same
transaction, occurrence, or series of transactions or
occurrences.” Fed.R.Civ.P. 20(a)(2)(A). “However,
unrelated claims that involve different defendants must be
brought in separate lawsuits.” Bryant v.
Romero, No. 1:12-CV-02074-DLB PC, 2013 WL 5923108, at *2
(E.D. Cal. Nov. 1, 2013) (citing George v. Smith,
507 F.3d 605, 607 (7th Cir. 2007)). This rule is not only
intended to avoid confusion that arises out of bloated
lawsuits, but also to ensure that inmates pay the required
filing fees for their lawsuits and to prevent inmates from
circumventing the three strikes rule under the Prison
Litigation Reform Act, 28 U.S.C. §
plaintiff's first amended complaint must be complete in
itself. If plaintiff chooses to file a first amended
complaint he is advised that a first amended complaint
supersedes the original complaint and, thus, the first
amended complaint must be complete in itself. See Hal
Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
896 F.2d 1542, 1546 (9th Cir. 1989) (holding that
“[t]he fact that a party was named in the original
complaint is irrelevant; an amended pleading supersedes the
original”); see also Lacey v. Maricopa Cnty.,
693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims
dismissed with prejudice, a plaintiff is not required to
reallege such claims in a subsequent amended complaint to
preserve them for appeal). Plaintiff's first amended
complaint must contain all claims, defendants, and factual