United States District Court, D. Nevada
DILON A. HESS, Plaintiff,
METROPOLITAN POLICE DEPT., et al ., Defendants.
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff Dilon Hess' Application to
Proceed in forma pauperis (ECF No. 5). Attached to
Plaintiff's in forma pauperis application is a
Complaint for Violation of Civil Rights (Non-Prisoner)
pursuant to 42 U.S.C. § 1983 (ECF No 5-1).
IN FORMA PAUPERIS APPLICATION
submitted the declaration required by 28 U.S.C. §
1915(a) showing an inability to prepay fees and costs or give
security for them. Therefore, the Court grants
Plaintiff's request to proceed in forma
SCREENING THE COMPLAINT
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, fail 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.” 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) (internal
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) (internal citation
omitted). Although the standard under the Federal Rule of
Civil Procedure 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. 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).
courts are courts of limited jurisdiction and possess only
that power authorized by the Constitution and statute.
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).
Complaint asserts 42 U.S.C. § 1983 claims under the
Fourteenth Amendment to the United States Constitution. ECF
No. 5-1 at 4-6. Plaintiff's claims clearly arise under
federal law, and therefore, the Court has jurisdiction over
screening Plaintiff's Complaint and construing it
liberally, the Court looks in part to the attachments
provided. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th
Cir. 2007) (courts may generally consider allegations
contained in pleadings, as well as exhibits attached to the
complaint). Plaintiff's in forma pauperis
application is accompanied by a Complaint asserting
violations of civil rights, which, upon review, allege
Fourteenth Amendment equal protection claims against
Defendants Las Vegas Metropolitan Police Department
(“LVMPD”), “Detective D. Hawkins, ”
and “Sheriff Joseph Lombardo.” ECF No. 5-1 at
Court finds that LVMPD could be a properly named defendant if
Plaintiff states an underlying violation of law that states a
claim. “To hold a police department liable for the
actions of its officers, the [plaintiff] must demonstrate a
constitutional deprivation, and show that the deprivation was
visited pursuant to a police department custom or
policy.” Munger v. City of Glasgow Police
Dept., 227 F.3d 1082, 1088 (9th Cir. 2000) (internal
citation omitted). However, “[t]he inadequacy of police
training may serve as the basis for § 1983 liability
only where the failure to train in a relevant respect amounts
to deliberate indifference to the constitutional rights of
persons with whom the police come into contact.”
City of Canton, Ohio v. Harris, 489 U.S. 378, 379
Plaintiff alleges LVMPD “failed to instruct Det: [sic]
Hawkins on how to conduct an arrest.” ECF No. 5-1 at 5.
Plaintiff also ...