Austin v. State of Nevada et al

Filing 4

ORDER Granting 1 Application for Leave to Proceed in forma pauperis. Amended Complaint due within 30 days. Signed by Magistrate Judge Nancy J. Koppe on 4/9/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEITH AUSTIN,

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Plaintiff,
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vs.
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STATE OF NEVADA, et al,
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Defendants. )
__________________________________________)

Case No. 2:13-cv-00089-GMN-NJK
ORDER
(IFP App - Dkt. #1)

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Plaintiff Keith Austin is proceeding in this action pro se, has requested authority pursuant to

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28 U.S.C. § 1915 to proceed in forma pauperis, and submitted a Complaint (Dkt. #1) on January 17, 2013.

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This proceeding was referred to this court by Local Rule IB 1-9.

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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 fees and

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costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted

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pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff’s 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 complaint

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pursuant to § 1915(a).1 Federal courts are given the authority dismiss a case if the action is legally

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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a

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complaint under § 1915(a), the plaintiff should be given leave to amend the complaint with directions as

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The Court has reviewed Plaintiff’s Complaint, as well as the statements provided in the
“Addendum” that he filed. (Dkt. # 2).

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to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not

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be cured by amendment. See Cato v. 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 complaint for

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failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling

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on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000).

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A properly pled complaint must provide a short and plain statement of the claim showing that the pleader

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is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Although Rule 8 does not require detailed factual allegations, it demands “more than labels and

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conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all

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

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conclusions. Id. Mere recitals of the elements of a cause of action, supported only by conclusory

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allegations, do not suffice. Id. Secondly, where the claims in the complaint have not crossed the line from

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plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570.

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The Complaint in this case was filed on the court’s form civil rights complaint, pursuant to 42

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U.S.C. § 1983. To state a claim under section 1983, a plaintiff must allege that a right secured by the

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Constitution has been violated, and the deprivation was committed by a person acting under color of state

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law. West v. Atkins, 487 U.S. 42 (1988) (citation omitted). States and state officers sued in their official

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capacity are not “persons” for the purposes of a section 1983 action, and generally, they may not be sued

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under the statute. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989).

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Here, Plaintiff alleges a violation of section 1983 because, he claims, he was not given his Miranda

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warnings2 by an unknown Las Vegas Metropolitan Police Department officer. Plaintiff provides no

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information other than his allegations that he was placed under arrest on or about September 28, 2008 at

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his residence; that he does not remember the name of the police officer who placed him under arrest; that

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the police report states he was given his Miranda warnings prior to questioning; and that he was not, in

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“Miranda warnings” are the formal warnings law enforcement officers must give to a person in
custody prior to the interrogation of that person. Miranda v. Arizona, 384 U.S. 436 (1966).
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fact, given Miranda warnings.

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Accepting as true all factual allegations in the Complaint, the failure of the unknown police officer

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to advise Plaintiff of his rights under Miranda does not violate Plaintiff’s constitutional rights and, thus,

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cannot constitute grounds for a section 1983 action. See Crowe v. Count of San Diego, 608 F.3d 406, 427

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(9th Cir. 2010) (discussing Chavez v. Martinez, 538 U.S. 760, 772 (2003)); see also New York v. Quarles,

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467 U.S. 649, 686 (1984) (“All the Fifth Amendment forbids is the introduction of coerced statements at

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trial”). In his Complaint, Plaintiff failed to allege whether the statement about which he complains was

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used against him at trial. “The privilege against self-incrimination guaranteed by the Fifth Amendment

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is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior

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to trial may ultimately impair that right, a constitutional violation occurs only at trial.” Withrow v.

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Williams, 507 U.S. 680, 692 (1993) (emphasis added).

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Plaintiff has failed to state a claim upon which relief can be granted in his original Complaint, since

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the failure to provide Miranda warnings does not violate Plaintiff’s constitutional rights. Plaintiff has

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failed to provide any information regarding whether his statement was used against him at trial, and he has

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failed to sufficiently allege the involvement of each Defendant.3 If the statement was used against Plaintiff

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at trial, he may be able to state a claim upon which relief may be granted, but the court cannot make this

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determination from Plaintiff’s Complaint.

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Accordingly, IT IS ORDERED that:

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1.

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Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not be
required to pay the filing fee of three hundred fifty dollars ($350.00).

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2.

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

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at government expense.
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The Clerk of the Court shall file the Complaint.

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Plaintiff appears to have attempted to allege that the Nevada District Court is a Defendant as
well, but has failed to allege any involvement for that Defendant in his original Complaint.
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4.

The Complaint is DISMISSED for failure to state a claim upon which relief can be granted,

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with leave to amend. Plaintiff will have thirty (30) days from the date that this Order is

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entered to file his Amended Complaint, if he believes he can correct the noted deficiencies.

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If Plaintiff chooses to amend the complaint, Plaintiff is informed that the Court cannot refer

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to a prior pleading (i.e., his original Complaint) in order to make the Amended Complaint

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complete. This is because, as a general rule, an Amended Complaint supersedes the

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original Complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Local Rule 15-1

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requires that an Amended Complaint be complete in itself without reference to any prior

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pleading. Once a plaintiff files an Amended Complaint, the original Complaint no longer

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serves any function in the case. Therefore, in an Amended Complaint, as in an original

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Complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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Failure to comply with this Order will result in the recommended dismissal of this case,

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without prejudice.

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Dated this 9th day of April, 2013.

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________________________________________
NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE

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