Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cope v. State

United States District Court, D. Nevada

January 6, 2020

JENNIFER COPE, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER, APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NO. 1) AND COMPLAINT (ECF NO. 1-1)

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE.

         Before the Court are pro se plaintiff Jennifer Cope's application to proceed in forma pauperis (ECF No. 1) and complaint (ECF No. 1-1). Cope's in forma pauperis application is granted. Cope will be allowed to proceed on claims 1 (due process) and 4 (search and seizure) against Officer L.S. Trach, P#14734. Claims 2 (equal protection) and 3 (cruel and unusual punishment) are dismissed without prejudice. Defendants the State of Nevada, the City of Las Vegas, and the Las Vegas Metropolitan Police Department are also dismissed without prejudice.

         Discussion

         Cope's filings present two questions: (1) whether Cope may proceed in forma pauperis under 28 U.S.C. § 1915(e) and (2) whether Cope's complaint states a plausible claim for relief.

         I. Whether Cope May Proceed In Forma Pauperis

         Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to pay such fees or give security therefor.” Cope's application to proceed in forma pauperis includes a declaration under penalty of perjury that plaintiff is unable to pay the costs of these proceedings. (ECF No. 1). Plaintiff declares that she is homeless and that in the past 12 months she has received no wages and has no assets. (Id.) Plaintiff's application to proceed in forma pauperis is granted.

         II. Whether Cope's Complaint States a Plausible Claim

         a. Legal Standard

         Section 1915 also requires that if the Court grants an application to proceed in forma pauperis, the Court must review plaintiffs' complaint to determine whether the complaint is frivolous, malicious, fails to state a claim on which the Court may grant relief, or if the complaint seeks damages against a defendant who is immune from that relief. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil Procedure 8(a) provides that a complaint “that states a claim for relief” must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” The Supreme Court's decision in Ashcroft v. Iqbal states that to satisfy Rule 8's requirements, a complaint's allegations must cross “the line from conceivable to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)).

         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. A complaint should be dismissed under Rule 12(b)(6) "if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). Though “[n]o technical form is required for complaints” (Fed. R. Civ. P. 8(a)), “[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. …If doing so would promote clarity, each claim founded on a separate transaction or occurrence…must be stated in a separate count or defense” (Fed. R. Civ. P. 10(b)).

         The amended complaint must be “complete in itself, including exhibits, without reference to the superseded pleading.” LR 15-1. “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). If the Court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         b. The Younger Doctrine

         The United States Supreme Court has found that absent extraordinary circumstances, federal courts must not interfere with pending state criminal prosecutions, even if the civil litigant alleges violations of his constitutional rights. Younger v. Harris, 401 U.S. 37, 43 (1971). Pursuant to the Younger abstention doctrine federal courts may not stay or enjoin pending state criminal court proceedings, nor grant monetary damages for constitutional violations arising from them. Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986). “Younger principles apply to a claim for damages based on constitutional challenges which can be asserted in pending state proceedings that implicate important state interests, and that the correct disposition is to defer - not to dismiss - when damages are at issue.” Gilbertson v. Albright, 381 F.3d 965, 982 (9th Cir. 2004). Once the state proceeding has run its course, the Court can decide whether the damages action should proceed. "If the plaintiff is ultimately convicted [Heck v. Humphrey, 512 U.S. 477, (1994)] will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit." Wallace v. Kato, 549 U.S. 384, 393-94 (2007).

         c. Nevada Law

         Pursuant to NRS 207.200:

Unlawful trespass upon land; warning against trespassing.
1. Unless a greater penalty is provided pursuant to NRS 200.603, any person who, under circumstances not amounting to a burglary:
(a) Goes upon the land or into any building of another with intent to vex or annoy the owner or occupant thereof, or to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.