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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ALFONSO VILLALOBOS,

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Plaintiff Alfonso Villalobos is proceeding in this action pro se and has requested authority

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pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted

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a Complaint on July 31, 2014. Id. This proceeding was referred to this court by Local Rule IB 1-9.

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I.

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Plaintiff(s),

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vs.

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MATTHEW T. MILONE, ESQ., et al.,

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Defendant(s).

2:14-cv-01262-RFB-NJK
ORDER
(Docket No. 1)

In Forma Pauperis Application

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Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees

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and costs or give security for them. Docket No. 1. Accordingly, the request to proceed in forma

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pauperis 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 § 1915.1 Federal courts are given the authority to dismiss a case if the action

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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

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

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

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a court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the

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complaint with directions as to curing its deficiencies, unless it is clear from the face of the

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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d

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1103, 1106 (9th Cir. 1995).

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In addition, the Court has a duty to ensure that it has subject matter jurisdiction over the

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dispute before it. See, e.g., Fed. R. Civ. P. 12(h)(3). Federal courts are courts of limited jurisdiction

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and possess only that power authorized by the Constitution and statute. See Kokkonen v. Guardian

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Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994). Plaintiff has not alleged federal jurisdiction exists

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in this case. Plaintiff does not explicitly list the law(s) under which he brings his claims, but the

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allegations relate to alleged attorney malpractice and appear to arise under state law, so federal

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question jurisdiction pursuant to 28 U.S.C. § 1331 does not exist. Plaintiff has also not invoked the

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court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332 because he alleges that the parties are all

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Nevada citizens, see Docket No. 1-1 at 1, and has failed to allege damages in this case that exceed

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the jurisdictional minimum of $75,000.

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Accordingly, the Court DISMISSES the complaint with leave to amend.
III.

Conclusion

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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 four hundred dollars ($400.00).

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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

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Order granting leave to proceed in forma pauperis shall not extend to the issuance

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of subpoenas at government expense.

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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”).
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The Clerk of the Court shall file the Complaint.

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4.

The Complaint is DISMISSED for lack of subject matter jurisdiction, with leave to

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amend. Plaintiff will have until September 29, 2014 to file an Amended Complaint,

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if he believes he can correct the noted deficiencies. If Plaintiff chooses to amend the

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complaint, Plaintiff is informed that the Court cannot refer to a prior pleading (i.e.,

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his original Complaint) in order to make the Amended Complaint complete. This is

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because, as a general rule, an Amended Complaint supersedes the original

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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

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prior pleading. Once a plaintiff files an Amended Complaint, the original Complaint

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no longer serves any function in the case. Therefore, in an Amended Complaint, as

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in an original Complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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recommended dismissal of this case without prejudice.

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Failure to comply with this Order will result in the

Dated: August 28, 2014

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NANCY J. KOPPE
United States Magistrate Judge

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