United States District Court, D. Nevada
COLE D. ENGELSON Plaintiff,
NYE COUNTY, et al ., Defendants.
J. YOUCHAH, 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. ECF No. 1. Plaintiff
attached his Complaint (ECF No. 1-1) to his in forma
In Forma Pauperis Application
has submitted the affidavit required by § 1915(a)
showing an inability to prepay fees and costs or give
security for them. ECF No. 1. Although Plaintiff checked a
box indicating that he is proceeding in forma
pauperis under 42 U.S.C. § 1985 (id. at
1), the Court will construe Plaintiff's claim as having
been brought under 42 U.S.C. § 1983 for the purposes of
this Order. Accordingly, the request to proceed in forma
pauperis will be granted pursuant to 28 U.S.C. §
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.” 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. 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).
is suing “Alexandra Fernandes, ” “Alex Cox,
” “Michael Eisenloffel, ” and “David
Boruchowitz” in their official and individual
capacities for “[f]alsifying a police report violating
Federal Code and State law”; violating NRS as it
pertains to libel; violating his Due Process rights under the
Fourteenth Amendment of the United States Constitution;
“[m]alfeasance of oath”; “[m]alfeasance of
a crime”; violating his Eighth Amendment rights;
“[c]riminal [n]egligence”; “[a]buse of
[p]rocess”; violating 28 U.S.C. § 4101 by
“presenting the plaintiff in a false light, [c]ausing
[e]motional [d]istress”; “[b]reach of
[d]uty”; “[c]riminal [d]efamation”; and,
violating “[d]ue [d]iligence.” ECF No. 1-1 at
2-6. Under the section of his Complaint captioned
“Facts of Case, ” Plaintiff states that Alexandra
Fernandes and Alex Cox, detectives of the Nye County
Sheriff's Office, “knowingly falsified a [p]olice
[r]eport by submitting libel[ous] statements in [their]
Declaration[s] of Arrest with the intention of aiding in a
[m]alicious [p]rosecution.” Id. at 3-4.
Plaintiff further claims Michael Eisenloffel, “the
Undersheriff of the Nye County Sheriff's Office, . . .
aid[ed] in a [m]alicious prosecution by cosigning a falsified
Declaration and Supplemental Declaration of Arrest.”
Id. at 4. Finally, Plaintiff alleges that David
Boruchowitz, a Lieutenant of the Nye County Sheriff's
Office, “knowingly falsified an [o]fficial [p]olice
[d]ocument by submitting [l]ibel[ous] [s]tatements in an
[u]rgent [r]equest [f]ax.” Id.
Court finds Plaintiff fails to sufficiently allege a factual
basis on which to evaluate his claims. Specifically,
Plaintiff's Complaint is devoid of any description of the
alleged offense or the circumstances of his subsequent
arrest. Even after construing all allegations of material
fact as true and in the light most favorable to Plaintiff
(See Wyler Summit P'ship, 135 F.3d at 661),
Plaintiff's conclusory statements are insufficient to
state claims for relief that are plausible on their face. The
Court therefore will dismiss Plaintiff's complaint
without prejudice for the Plaintiff to file an amended
complaint that meets the pleading requirements.
IT IS HEREBY ORDERED that Plaintiff's 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 granting leave to proceed in
forma pauperis does not extend to the issuance of
subpoenas at government expense.
FURTHER ORDERED that the Clerk of Court shall separate and
electronically file Plaintiff's complaint attached to ECF
FURTHER ORDERED that the Complaint (ECF No. 1-1) is DISMISSED
WITHOUT PREJUDICE for failure to state a claim upon which
relief can be granted, WITH LEAVE TO AMEND. If Plaintiff
chooses to file an amended complaint, Plaintiff must file the
amended complaint within 30 days from the date of this Order.
Failure to comply with this Order may result in a
recommendation that this action be dismissed.
Plaintiff chooses to file an amended complaint, the document
must be titled “Amended Complaint.” The amended
complaint must contain a short and plain statement of the
grounds for the Court's jurisdiction. See Fed.
R. Civ. P. 8(a)(1). Additionally, the amended complaint must
contain a short and plain statement describing the underlying
case and Defendants' conduct that constitutes
discrimination. 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 Plaintiffs claims against it and
Plaintiffs 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 ...