Connors v. Nevada Energy

Filing 3

ORDER Granting 1 Application for Leave to Proceed in forma pauperis. FURTHER ORDERED that the Clerk shall file Plaintiff's Complaint. FURTHER ORDERED that the Complaint is dismissed without prejudice for failure to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have 30 days to file an amended complaint. Signed by Magistrate Judge Carl W. Hoffman on 9/7/12. (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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FREDRICK CONNORS,

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Plaintiff,
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vs.
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NEVADA ENERGY,
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Defendants.
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____________________________________)

Case No. 2:12-cv-01478-GMN-CWH
ORDER
Application to Proceed In Forma
Pauperis (#1) and Screening of
Complaint

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This matter is before the Court on Plaintiff’s Application to Proceed in Forma Pauperis
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(#1), filed on August 20, 2012.
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I.

In Forma Pauperis Application

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Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay
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fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis
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will be granted pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff’s
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complaint.
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II.

Screening the Complaint

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Upon granting a request to proceed in forma pauperis, a court must additionally screen a
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complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the
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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,
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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915(e)(2). When a court dismisses a complaint under § 1915(a), the plaintiff should be given
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leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from
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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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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a

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complaint for failure to state a claim upon which relief can be granted. Review under Rule

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12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of

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America, 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);

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Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require

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detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled

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factual allegations contained in the complaint, but the same requirement does not apply to legal

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conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action,

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supported only by conclusory allegations, do not suffice. Id. at 678. Secondly, where the claims

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in the complaint have not crossed the line from plausible to conceivable, the complaint should be

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dismissed. Twombly, 550 U.S. at 570.

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A.

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As a general matter, federal courts are courts of limited jurisdiction and possess only that

Federal Question Jurisdiction

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power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004).

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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

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under’ federal law either where federal law creates the cause of action or ‘where the vindication

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of a right under state law necessarily turn[s] on some construction of federal law.’” Republican

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Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd.

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v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). The presence or absence of

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federal-question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc.

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v. Williams, 482 U.S. 386, 392 (1987). Under the well-pleaded complaint rule, “federal

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jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly

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pleaded complaint.” Id.

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The only claim asserted by Plaintiff is that his privacy was violated. It is true that a
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person has a constitutional right to privacy. Although there is uncertainty regarding the precise

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bounds of the constitutional right to privacy, its existence is firmly established. In re Crawford,

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194 F.3d 954, 958 (9th Cir. 1999) (citations omitted). Thus, it appears that Plaintiff’s complaint

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implicates a federal question. However, as more fully set forth below, Plaintiff has not

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adequately pled facts to support the claim and, therefore, the Court will dismiss the complaint

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and require Plaintiff submit an amended complaint that more fully sets forth the facts underlying

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the privacy claim.

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C.

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As previously noted, a properly pled complaint must provide a short and plain statement

Failure to State a Claim

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of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This requires

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“more than labels and conclusions” or a “formulaic recitation of the elements of a cause of

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action.” Iqbal, 556 U.S. at 678. The court must accept as true all well-pled factual allegations

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contained in the complaint. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of

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action, supported only by conclusory allegations, do not suffice. Id. at 678. To state a claim for

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relief, “a complaint must contain sufficient factual matter to ‘state a claim to relief that is

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plausible on its face.’” Id.

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Here, Plaintiff alleges that his constitutional right to privacy has been violated. To

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adequately plead a cause of action under section 1983, a plaintiff must show that the defendant:

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(1) acted under color of state law, and (2) deprived the plaintiff of a federal or constitutional

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right. There are two distinct kinds of constitutionally-protected privacy interest: “One is the

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individual interest in avoiding disclosure of personal maters, and another is the interest in

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independence in making certain kinds of important decisions.” In re Crawford, 194 F. Supp at

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958 (citing Doe v. Attorney General, 941 F.2d 780, 795 (9th Cir. 1991). Unfortunately, the

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complaint, on its face, alleges no facts nor does it identify any individuals responsible for any

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alleged constitutional violation. The Court declines to provide further instruction as Plaintiff

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filed a virtually identical complaint in Connors v. United States, 3:11-cv-00345-LRH-CWH.1 In

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Similar claims were also dismissed in Connors v. Frontierland Communications, et al., 2:12-cv-00319-

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the order dismissing that complaint without prejudice, Plaintiff was given detailed instructions

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regarding what is necessary to plead the cause of action for which he seeks relief. See Order

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(#15), 3:11-cv-00345-LRH-CWH.

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Based on the foregoing and good cause appearing therefore,

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IT IS HEREBY ORDERED that Plaintiff’s application to proceed in forma pauperis is

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

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($350.00). Plaintiff is permitted to maintain this action to conclusion without the necessity of

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prepayment of any additional fees or costs or the giving of a security therefor. This Order

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

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government expense.
IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiff’s
Complaint.
IT IS FURTHER ORDERED that the Complaint is dismissed without prejudice for

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failure to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have

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thirty (30) days from the date that this Order is entered to file an amended complaint correcting

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the noted deficiencies. Failure to comply with this Order may result in the Court recommending

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that this action be dismissed.

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DATED this 7th day of September, 2012.

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___________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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LDG-CWH (#15)

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