United States District Court, D. Nevada
ORDER RE: ECF NOS. 27, 28, 32
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
has filed a Motion for Leave to Amend and proposed amended
complaint. (ECF Nos. 27, 27-1.) Defendants filed a response.
(ECF No. 29.)
former Sheriff Chuck Allen subsequently filed a motion to
dismiss. (ECF No. 28.) Plaintiff has filed a motion for an
extension of time to respond to that motion. (ECF No. 32.)
Federal Rule of Civil Procedure 15, leave to amend should be
freely given when required by justice. Given that this case
is still in the early stages, the court finds leave to amend
is appropriate. The court will now screen the proposed
court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in
a civil action in which a prisoner seeks redress from a
governmental entity or office or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). “On review,
the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
complaint-- (1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(b)(1)-(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 28 U.S.C. § 1915(e)(2)(B)(ii)
and 28 U.S.C. § 1915A(b)(1) track that language. Thus,
when reviewing the adequacy of a complaint under 28 U.S.C.
§ 1915(e)(2)(B)(ii) or 28 U.S.C. § 1915A(b)(1), the
court applies the same standard as is applied under Rule
12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108,
1112 (9th Cir. 2012). Review under 12(b)(6) is essentially a
ruling on a question of law. See Chappel v. Lab. Corp. of
America, 232 F.3d 719, 723 (9th Cir. 2000) (citation
reviewing the complaint under this standard, the court must
accept as true the allegations, construe the pleadings in the
light most favorable to the plaintiff, and resolve all doubts
in the plaintiff's favor. Jenkins v. McKeithen,
395 U.S. 411, 421 (1969) (citations omitted). Allegations in
pro se complaints are “held to less stringent standards
than formal pleadings drafted by lawyers[.]” Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and
complaint must contain more than a “formulaic
recitation of the elements of a cause of action, ” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“The pleading must contain something more … than
… a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action.”
Id. (quoting 5 C. Wright & A. Miller, Federal
Practice & Procedure § 1216, at 235-36 (3d ed.
2004)). At a minimum, a plaintiff should state “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570; see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff's Proposed Amended Complaint
proposed amended complaint names former Sheriff Chuck Allen,
Deputy Sheriff Whitmore, Sergeant O'Brien, John Doe
Deputies 1-10 and Medical Provider Does 1-3. (ECF No. 27-1 at