United States District Court, D. Nevada
ORDER [DOCKET NO. 1]
J. KOPPE UNITED STATES-MAGISTRATE JUDGE
is proceeding in this action pro se and has
requested authority pursuant to 28 U.S.C. § 1915 to
proceed in forma pauperis. Docket No. 1. Plaintiff
also submitted a Complaint. Docket No. 1-1.
In Forma Pauperis Application
has submitted the affidavit required by § 1915(a).
Docket No. 1. Plaintiff has shown an inability to prepay fees
and costs or give security for them. Accordingly, the request
to proceed in forma pauperis will be granted
pursuant to 28 U.S.C. § 1915(a). The Clerk's Office
is further INSTRUCTED to file the complaint
on the docket. The Court will now review Plaintiff's
granting an application to proceed in forma
pauperis, courts additionally screen the complaint
pursuant to § 1915(e). 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 who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). When a court dismisses a complaint under
§ 1915, 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).
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.
Lab. Corp. of Am., 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.
Twombly, 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, 556 U.S. 662, 678
(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, 556 U.S. at 679. Mere recitals of the
elements of a cause of action, supported only by conclusory
allegations, do not suffice. Id. at 678. Secondly,
where the claims in the complaint have not crossed the line
from conceivable to plausible, the complaint should be
dismissed. Twombly, 550 U.S. at 570. Allegations of
a pro se complaint are held to less stringent
standards than formal pleadings drafted by lawyers. Hebbe
v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010)
(finding that liberal construction of pro se
pleadings is required after Twombly and
Federal Question Jurisdiction
courts are courts of limited jurisdiction and possess only
that power authorized by the Constitution and statute.
See Rasul v. Bush, 542 U.S. 466, 489 (2004).
Pursuant to 28 U.S.C. § 1331, federal courts have
original jurisdiction over “all civil actions arising
under the Constitution, laws, or treaties of the United
States.” Cases “arise under” federal law
either when federal law creates the cause of action or where
the vindication of a right under state law necessarily turns
on the construction of federal law. Republican Party of
Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir.
2002). Whether federal question jurisdiction exists is based
on the “well-pleaded complaint rule, ” which
provides that “federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987). Plaintiff has not identified any federal law under
which she seeks to proceed. Accordingly, federal question
jurisdiction does not exist.
to 28 U.S.C. § 1332, 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.” Plaintiff's
Complaint fails to allege an amount for damages; however, in
one of her attachments, she appears to suggest that she seeks
damages of $2, 000. Docket No. 1-1 at 19. Accordingly, the
Court finds that Plaintiff has not established diversity
Allegations in Complaint
Plaintiff has made the conclusory allegations that a botox
injection she received at Defendant Miller's clinic
“was a very bad experience, ” that she “was
very scared by what that person did, ” and that her
eyelids have “fallen” as a result of the
injection. Id. at 4. Plaintiff provides no factual
details regarding her claim and fails to identify in her
complaint any law or legal theory under which she seeks
recovery. See, generally, Docket No. 1-1.
Her bare assertion, with no factual basis and no explanation
as to how those facts constitute a violation of any laws,
does not sufficiently state a claim. See Twombly,
550 U.S. at 555. See also Iqbal, 556 U.S. at 678.
Chapter 41A of the Nevada Revised Statutes (NRS) governs
lawsuits for medical malpractice. NRS § 41A.100, which
is Nevada's statute with respect to claims ...