United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION
J. ALBREGTS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on pro se Plaintiff Wendell Dwayne
O'Neal's Amended Complaint. (ECF No. 15). He was
previously granted the ability to to proceed in forma
pauperis and his Complaint was dismissed with leave to
amend. (ECF No. 13). He timely filed an Amended Complaint,
which the Court will now screen. Additionally, Plaintiff
filed a Motion to Consolidate (ECF No. 16) on November 14,
2019, which requests consolidation of his later filed case in
this District, Case No. 2:18-cv-1677-RFB-BNW.
SCREENING THE AMENDED 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, file 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. Further, a Court may dismiss a
claim as factually frivolous if its allegations are
“clearly baseless, a category encompassing allegations
that are fanciful, fantastic, and delusional.”
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)
(internal citations and punctuation omitted). 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). Allegations of a pro
se complaint are held to less stringent standards than
formal pleadings drafted by lawyers. Hebbe v.
Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010)
(finding that liberal construction of pro se
pleadings is required after Twombly and
general, Plaintiff appears to allege that employees of the
Nevada DMV concealed evidence of a fraud perpetrated on
African American youth regarding rental cars that allegedly
were offered for rent by Roadrunner, advertised on the
website Craigslist and insured by Zurich. He also alleges
that several attorneys and Zurich Insurance Company were
involved in a conspiracy with the Nevada DMV employees due to
their Jewish faith. He alleges that Defendants misrepresented
the availability of liability insurance coverage for
short-term leases of California rental cars in Las Vegas,
Nevada. Plaintiff further alleges intricate facts regarding
his grandchildren's involvement in a transaction with
Roadrunner and his subsequent investigation of that
Amended Complaint appears to attempt to assert the following
claims: civil conspiracy claim, negligent concealment, and
fraudulent concealment. His 18 page Amended Complaint is
replete with various accusations, and it is quite difficult
to discern exactly what brings plaintiff into federal court.
His complaint is rambling, nonsensical, filled with legal
jargon, and with vague references to state and federal laws.
Dismissal on those grounds alone is appropriate. Federal Rule
of Civil Procedure 8(a)(2) requires that a complaint contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendants fair notice of what the . . . claim is and the
grounds upon which it rests.” Twombly, 550
U.S. at 555 (quotation and alteration omitted).
Plaintiff's largely incomprehensible narrative makes it
nearly impossible for the Court to identify if he can state a
plausible claim. Indeed, the only possible federal cause of
action is the civil conspiracy claim - to the extent that
Plaintiff is attempting to assert one under RICO.
it is not clear that the deficiencies identified can be
cured, the Court will allow Plaintiff an opportunity to file
a second amended complaint to the extent he believes that he
can state a claim. If Plaintiff chooses to file a second
amended complaint, the document must be titled “Second
Amended Complaint.” The second amended complaint must
contain a short and plain statement describing the underlying
case, the defendant(s) involvement in the case, and the
approximate dates of its involvement. 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 his claims against them
and his entitlement to relief.
Plaintiff is advised that if he files a second amended
complaint, the amended complaint no longer serves any
function in this case. As such, the second amended complaint
must be complete in and of itself without reference to prior
pleadings or other documents. The Court cannot refer to a
prior pleading or other documents to make Plaintiff's
second amended complaint complete.
requests that this case be consolidated with his later filed
case, Case No. 2:18-cv-1677-RFB-BNW. It appears as though he
re-filed the same allegations in a subsequent case while his
objection to the prior recommended dismissal of this case was
pending. As the two cases involve what appears to be the same
parties, same allegations, and same claims, consolidation is
appropriate. Therefore, the Court recommends that the
subsequent case be closed and consolidated into this case.
THEREFORE ORDERED that the Amended Complaint (ECF No. 15) is
DISMISSED without prejudice for failure to state a claim upon
which relief can be granted, with leave to amend.
FURTHER ORDERED that plaintiff shall have until
February 3, 2020, to file a second amended
complaint. Failure to file a second an amended complaint will