Shamsai-Nejad v. CCPD et al

Filing 2

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. FURTHER ORDERED that Plaintiff's Complaint [1-1] is DISMISSED without prejudice, with leave to amend. Plaintiff shall have until 9/3/12 to file an amended complaint c orrecting the noted deficiencies. Failure to file an amended complaint within the time allowed may result in a recommendation that Plaintiff's action be dismissed with prejudice. Signed by Magistrate Judge George Foley, Jr on 8/6/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VAFA SHAMSAI-NEJAD,

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Plaintiffs,
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vs.
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CCPD, et al.,
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Defendants. )
__________________________________________)

Case No. 2:12-cv-01203-MMD-GWF
ORDER
Application to Proceed in Forma
Pauperis (#1) and Screening of Complaint

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This matter comes before the Court on Plaintiff's Application to Proceed in Forma Pauperis
(#1), filed on July 7, 2012.

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BACKGROUND

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It appears Plaintiff is alleging harassment by Defendant Las Vegas Metropolitan Police

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Department (LVMPD). Plaintiff claims that from 2002 to 2009, she was subjected to repeated

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harassment by LVMPD stemming from an alleged false arrest, a child abuse accusation, and a report of

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sexual harassment. Plaintiff also alleges that Defendant Wolfson did not provide truthful counsel

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regarding the alleged false arrest. Defendants AT&T and Cox Cable Company are named-Defendants

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in Plaintiff's Complaint (#1), however, no facts are provided alleging claims against them.

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DISCUSSION
I.

Application to Proceed In Forma Pauperis

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Plaintiff filed this instant action and attached a financial affidavit to her application and

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complaint as required by 28 U.S.C. § 1915(a). Reviewing Shamsai-Nejad’s financial affidavit pursuant

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to 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result,

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Plaintiff's request to proceed in forma pauperis in federal court is granted.

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II.

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Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which relief

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may be granted, or seeks monetary relief from a defendant/third party plaintiff who is immune from

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such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for failure to

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state a claim upon which relief may be granted “if it appears beyond a doubt that the plaintiff can prove

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no set of facts in support of his claims that would entitle him to relief.” Buckey v. Los Angeles, 968

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F.2d 791, 794 (9th Cir. 1992).

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A complaint may be dismissed as frivolous if it is premised on a nonexistent legal interest or

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delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Moreover, “a finding of

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factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly

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incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v.

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Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 1915(e), the plaintiff

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should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is

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clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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III.

Instant Complaint

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To bring an action before federal district court, a plaintiff must state a federal question or the

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parties must be completely diverse in citizenship. See 28 U.S.C. §§ 1331 and 1332. Federal district

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courts are courts of limited jurisdiction, deriving their power to hear cases from specific congressional

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grants of jurisdiction. United States v. Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000).

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A.

Federal Question Jurisdiction

Pursuant to 28 U.S.C. § 1331, federal district courts have original jurisdiction over “all civil

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actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises under’

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federal law either where federal law creates the cause of action or ‘where the vindication of a right

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under state law necessarily turn[s] on some construction of federal law.’” Republican Party of Guam v.

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Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. v. Construction
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Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). The presence or absence of federal-question

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jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc. v. Williams, 482 U.S.

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386, 392 (1987). Under the well-pleaded complaint rule, “federal jurisdiction exists only when a

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federal question is presented on the face of the plaintiff's properly pleaded complaint.” Id. “‘Dismissal

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for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only

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when the claim is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise

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devoid of merit as not to involve a federal controversy.’” United States v. Morros, 268 F.3d 695, 701

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(9th Cir. 2001) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quotation

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omitted)). It appears Plaintiff is alleging harassment pursuant to Nevada Revised Statute 200.571.

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There are no other federal causes of action alleged and the Court cannot conceive one. Because this

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matter does not appear to arise under federal law, the Court does not have federal question jurisdiction.

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B.

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Diversity Jurisdiction

Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil actions in

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diversity cases “where the matter in controversy exceeds the sum or value of $75,000” and where the

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matter is between “citizens of different States.” Diversity jurisdiction requires Plaintiff to be diverse

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from all named Defendants. See 28 U.S.C. § 1332. Plaintiff and Defendant Las Vegas Metropolitan

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Police Department are Nevada citizens, and therefore the complete diversity requirement is not

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satisfied. Because there are no grounds to suggest federal jurisdiction, the Court finds that it lacks

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subject matter jurisdiction over this matter. The Court will allow Plaintiff an opportunity to amend her

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complaint to allege facts sufficient to state a claim that arises under federal jurisdiction.

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IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in Forma Pauperis (#1) is

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granted. Plaintiff shall not be required to pre-pay the full filing fee of three hundred fifty dollars

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($350.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to conclusion

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without the necessity of prepayment of any additional fees or costs or the giving of security therefor.

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This Order granting leave to proceed in forma pauperis shall not extend to the issuance of subpoenas at

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government expense.

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...
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IT IS FURTHER ORDERED that Plaintiff’s Complaint (#1-1) is dismissed without

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prejudice, with leave to amend. Plaintiff shall have until September 3, 2012 to file an amended

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complaint correcting the noted deficiencies. Failure to file an amended complaint within the time

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allowed may result in a recommendation that Plaintiff’s action be dismissed with prejudice.

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DATED this 6th day of August, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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