Villalobos v. Milone et al

Filing 2

ORDER Granting 1 Application for Leave to Proceed in forma pauperis. The Clerk of the Court shall file the Complaint. The Complaint is dismissed with leave to amend. Amended Complaint deadline: 9/29/2014. Signed by Magistrate Judge Nancy J. Koppe on 8/28/2014. (Copies have been distributed pursuant to the NEF - SLR)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 ALFONSO VILLALOBOS, 15 ) ) ) ) ) ) ) ) ) ) ) 16 Plaintiff Alfonso Villalobos is proceeding in this action pro se and has requested authority 17 pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted 18 a Complaint on July 31, 2014. Id. This proceeding was referred to this court by Local Rule IB 1-9. 19 I. 11 Plaintiff(s), 12 vs. 13 MATTHEW T. MILONE, ESQ., et al., 14 Defendant(s). 2:14-cv-01262-RFB-NJK ORDER (Docket No. 1) In Forma Pauperis Application 20 Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees 21 and costs or give security for them. Docket No. 1. Accordingly, the request to proceed in forma 22 pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The court will now review Plaintiff’s 23 complaint. 24 II. Screening the Complaint 25 Upon granting a request to proceed in forma pauperis, a court must additionally screen a 26 complaint pursuant to § 1915.1 Federal courts are given the authority to dismiss a case if the action 27 28 1 Although § 1915 at times refers to prisoners, the Ninth Circuit has made clear that the screening provisions are not limited to cases initiated by prisoners. See, e.g., Lopez v. Smith, 203 1 is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When 3 a court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the 4 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 5 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 6 1103, 1106 (9th Cir. 1995). 7 In addition, the Court has a duty to ensure that it has subject matter jurisdiction over the 8 dispute before it. See, e.g., Fed. R. Civ. P. 12(h)(3). Federal courts are courts of limited jurisdiction 9 and possess only that power authorized by the Constitution and statute. See Kokkonen v. Guardian 10 Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994). Plaintiff has not alleged federal jurisdiction exists 11 in this case. Plaintiff does not explicitly list the law(s) under which he brings his claims, but the 12 allegations relate to alleged attorney malpractice and appear to arise under state law, so federal 13 question jurisdiction pursuant to 28 U.S.C. § 1331 does not exist. Plaintiff has also not invoked the 14 court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332 because he alleges that the parties are all 15 Nevada citizens, see Docket No. 1-1 at 1, and has failed to allege damages in this case that exceed 16 the jurisdictional minimum of $75,000. 17 18 Accordingly, the Court DISMISSES the complaint with leave to amend. III. Conclusion 19 Accordingly, IT IS ORDERED that: 20 1. 21 22 Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not be required to pay the filing fee of four hundred dollars ($400.00). 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 23 prepayment of any additional fees or costs or the giving of a security therefor. This 24 Order granting leave to proceed in forma pauperis shall not extend to the issuance 25 of subpoenas at government expense. 26 27 28 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (“section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners”). -2- 1 3. The Clerk of the Court shall file the Complaint. 2 4. The Complaint is DISMISSED for lack of subject matter jurisdiction, with leave to 3 amend. Plaintiff will have until September 29, 2014 to file an Amended Complaint, 4 if he believes he can correct the noted deficiencies. If Plaintiff chooses to amend the 5 complaint, Plaintiff is informed that the Court cannot refer to a prior pleading (i.e., 6 his original Complaint) in order to make the Amended Complaint complete. This is 7 because, as a general rule, an Amended Complaint supersedes the original 8 Complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Local Rule 15-1 9 requires that an Amended Complaint be complete in itself without reference to any 10 prior pleading. Once a plaintiff files an Amended Complaint, the original Complaint 11 no longer serves any function in the case. Therefore, in an Amended Complaint, as 12 in an original Complaint, each claim and the involvement of each defendant must be 13 sufficiently alleged. 14 recommended dismissal of this case without prejudice. 15 Failure to comply with this Order will result in the Dated: August 28, 2014 16 17 18 NANCY J. KOPPE United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 -3-

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