United States District Court, D. Nevada
before the court is the matter of Bailey v. State of
Nevada et al., case number 2:16-cv-02515-JCM-EJY.
instant action arises from alleged violations of pro se
plaintiff Anthony Bailey's (“plaintiff”)
civil rights. Plaintiff complains that his First and
Fourteenth Amendment rights have been violated because the
Las Vegas Metropolitan Police Department
(“LVMPD”) has been allegedly fabricating and
falsifying evidence, and state court officials have declined
to enter default judgment against LVMPD in plaintiff's
state court proceedings.
Judge Foley issued a report and recommendation
(“R&R”) on August 30, 2017, which the court
adopted on April 12, 2018, over plaintiff's objection.
(ECF Nos. 5; 10; 12). The court gave plaintiff leave to amend
his claims against defendants Whitney Welch and Nancy
Katafia, and plaintiff filed an amended complaint on November
17, 2017. (ECF No. 11).
courts must conduct a preliminary screening in any case in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity. See 28
U.S.C. § 1915A(a). In its review, the court must
identify any cognizable claims and dismiss any claims that
are frivolous, malicious, fail to state a claim upon which
relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. § 1915A(b)(1), (2). In addition to those grounds
for dismissal, the PLRA requires a federal court to dismiss a
prisoner's claims “if the allegation of poverty is
untrue.” 28 U.S.C. § 1915(e)(2).
of a complaint for failure to state a claim upon which relief
may be granted is provided for in Federal Rule of Civil
Procedure 12(b)(6), and the Court applies the same standard
under Section 1915(e)(2) when reviewing the adequacy of a
complaint or amended complaint. Review under Fed.R.Civ.P.
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).
may dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). 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). While 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) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that defendant is liable for
the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but it has not shown-that the pleader is
entitled to relief.” Id. at 679. When the
allegations in a complaint have not crossed the line from
conceivable to plausible, plaintiff's claim must be
dismissed. Twombly, 550 U.S. at 570.
part of a complaint filed by a prisoner may be dismissed sua
sponte if the prisoner's claims lack an arguable basis
either in law or in fact. This includes claims based on legal
conclusions that are untenable (e.g. claims against
defendants who are immune from suit or claims of infringement
of a legal interest which clearly does not exist), as well as
claims based on fanciful factual allegations (e.g. fantastic
or delusional scenarios). See Neitzke v. Williams,
490 U.S. 319, 327-28 (1989); see also McKeever v.
Block, 932 F.2d 795, 798 (9th Cir. 1991).