United States District Court, D. Nevada
REPORT AND RECOMMENDATION
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Amended
Complaint/Letter (ECF No. 9), filed on November 19, 2018.
2, 2018, the undersigned entered an order granting
Plaintiff's Application to Proceed In Forma
Pauperis and a report and recommendation that
Plaintiff's Title VII claim against individual Defendants
Karla Ruggiero and Robert Freymuller be dismissed with
prejudice for failure to state a claim for which relief can
be granted. See ECF No. 2. On July 18, 2019, the
District Judge accepted and adopted the report and
recommendation dismissing Plaintiff' Title VII racial
discrimination claim against individual Defendants. ECF No.
Court's July 2, 2018 order, the Court dismissed
Plaintiff's Title VII claim against Defendant Valley
Health System Summerlin Hospital as well as her breach of
contract claim with leave to amend. The Court instructed
Plaintiff to file an amended complaint no later than July 30,
2018. ECF No. 2. On August 22, 2018, the Court issued an
order to show cause directing Plaintiff to show cause why
this matter should not be dismissed for failure to file an
amended complaint. ECF No. 4. On August 30, 2018, Plaintiff
filed her response and on September 5, 2019, the Court
allowed Plaintiff another opportunity to file an amended
complaint and instructed her to file her amended complaint no
later than October 5, 2018. ECF Nos. 5, 6. On October 10,
2018, Plaintiff filed a motion to extend and on October 16,
2018, the Court granted Plaintiff's motion to extend the
deadline to file her amended complaint to November 14, 2018.
granting a request to proceed in forma pauperis and granting
leave to amend, 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).
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). In its order
and report and recommendation (ECF No. 4), the Court gave
Plaintiff leave to amend the noted deficiencies of his
complaint and informed Plaintiff that pursuant to Local Rule
15-1, the Court could not refer to a prior pleading in order
to make his amended complaint complete. In multiple orders
and its report and recommendation (ECF Nos. 2, 6, 8), the
Court reiterated to Plaintiff that she could not refer to
prior pleadings and that Plaintiff must sufficiently allege
each claim and the involvement of each defendant.
Screening the Instant Amended Complaint
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.
amended complaint alleges a claim of breach of contract.
Plaintiff alleges that she “believe[s] that Karla
Ruggiero caused a breach in [her] nursing contract with The
Valley Health System as a traveling nurse.”
See ECF No. 9. It appears that Plaintiff had an
employment contract, that her employment was terminated, and
she alleges that there were no grounds for her dismissal. She
states that she had a 13 week long contract to work as a
nurse and her last day of work was November 4, 2015. She
seeks her lost wages and damages for emotional distress.
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,
” or from claims involving a federal question, which
are “civil actions arising under the Constitution,
laws, or treaties of the United States.” See
28 U.S.C. § 1331; 28 U.S.C. § 1332.
8(a)(1) of the Federal Rules of Civil Procedure states that a
“claim for relief must contain ... a short plain
statement of the grounds for the court's
jurisdiction.” Fed.R.Civ.P. 8(a)(1). The burden of
proving jurisdiction rests on the party asserting
jurisdiction. See McNutt v. Gen. Motors Acceptance
Corp. 298 U.S. 178, 182-83 (1936). Plaintiff does not
state the grounds for the Court's ...