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Gallegos v. Allen

United States District Court, D. Nevada

December 26, 2019

JOSE GALLEGOS, Plaintiff
v.
CHUCK ALLEN, et. al. Defendants

          ORDER RE: ECF NOS. 27, 28, 32

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         Plaintiff has filed a Motion for Leave to Amend and proposed amended complaint. (ECF Nos. 27, 27-1.) Defendants filed a response. (ECF No. 29.)

         Defendant 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.)

         I. AMENDMENT

         Under 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 amended complaint.

         II. SCREENING

         A. Standard

         "The 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).

         Dismissal 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 omitted).

         In 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 citation omitted).

         A 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).

         B. Plaintiff's Proposed Amended Complaint

         Plaintiff's 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 1-3.)

         1. ...


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