United States District Court, D. Nevada
J. ALBRJEGTS UNITED STATES MAGISTRATE JUDGE
before the Court is pro se Plaintiff Wendell Dwayne
O'Neal's application to proceed in forma
pauperis (ECF No. 1), filed on December 8,
2017. This matter is also before the Court on
Plaintiff's Motion for Order (ECF No. 11), filed on April
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). 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
Plaintiff submitted a complaint (ECF No. 1-1), amended
complaint (ECF No. 3), and addendum to the amended complaint
(ECF No. 4). As Plaintiff was not given leave to file an
amended complaint or an addendum, the Court will only screen
the original complaint. In general, Plaintiff appears to
allege that the DMV's employees failed to take any action
against Roadrunner Rentals, Inc. regarding its transport of
California registered automobiles and sale of those
automobiles via Craigslist. Plaintiff appears to allege that
the Court has federal question jurisdiction as he attempts to
state a due process violation via 42 U.S.C. § 1983.
Section 1983 creates a path for the private enforcement of
substantive rights created by the Constitution and Federal
Statutes. Graham v. Connor, 490 U.S. 386, 393-94
(1989). To the extent that Plaintiff is seeking to state a
claim under Section 1983, he “must allege the violation
of a right secured by the Constitution and the laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of law.”
West v. Atkins, 487 U.S. 42, 48-49 (1988). A person
acts under “color of law” if he
“exercise[s] power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
authority of state law.” West, 487 U.S. at 49.
Plaintiff names a law firm, Lewis Brisbois, as a defendant,
which is a private entity and not subject to a Section 1983
Plaintiff appears to name the Nevada DMV and individual DMV
employees as defendants. However, a municipal liability claim
under Section 1983 proceeds only if a municipality causes a
constitutional violation through a policy or custom. See
Harper v. City of Los Angeles, 533 F.3d 1010, 1024-25
(9th Cir. 2008). Municipal entities may be held directly
liable, but not on the basis of respondeat superior.
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 91
(1978). In other words, a municipality cannot be held liable
only because it employs a person who allegedly violated the
constitution. Id. at 691. “A plaintiff seeking
to impose liability on a municipality under § 1983
[must] identify a municipal policy or custom that caused the
plaintiff's injury.” Id. (citation and
internal quotation marks omitted). A municipal employer is
not liable for the wrongful conduct of its employees and
agents even if they are acting in the course and scope of
their employment. See Bd. of Cty. Comm'rs v.
Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d
626 (1997); Connick v. Thompson, 563 U.S. 51, 60,
131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (explaining that to
impose liability on a local government under § 1983,
plaintiffs must prove that an “action pursuant to
official municipal policy” caused their injury);
Sandoval v. Las Vegas Metro. Police Dep't, 756
F.3d 1154, 1167-68 (9th Cir. 2014) (same). Plaintiff's
amended complaint has not made the requisite showing.
Although it is not clear that the deficiencies identified can
be cured, the Court will allow Plaintiff an opportunity to
file an amended complaint to the extent he believes that he
can state a claim.
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 defendants fair notice of his
claims against them and his entitlement to relief.
Plaintiff is advised that if he 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 Plaintiffs amended
THEREFORE ORDERED that Plaintiffs Application for Leave to
Proceed In Forma Pauperis (ECF No. 1) 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 ...