Martinez v. Las Vegas Metropolitan Police Department et al

Filing 7

ORDER directing Clerk to file complaint; dismissing complaint with leave to amend; giving Plaintiff until 5/26/2016 to file amended complaint. Signed by Magistrate Judge Nancy J. Koppe on 4/26/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MIGUEL A. MARTINEZ,
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Plaintiff(s),
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT, et al.,
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Defendant(s).
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__________________________________________)

Case No. 2:15-cv-00883-MMD-NJK
ORDER

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Plaintiff Miguel Martinez is proceeding in this action pro se and has received authority pursuant

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to 28 U.S.C. § 1915 to proceed in forma pauperis. Docket No. 5. The Court must now screen his

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complaint pursuant to 28 U.S.C. § 1915(e)(2).

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I.

SCREENING THE COMPLAINT

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Federal courts are given the authority to dismiss a case if the action is legally “frivolous or

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

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

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

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deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by

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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). A

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

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

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conclusory allegations, do not suffice. Id., at 678. Secondly, where the claims in the complaint have not

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crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at

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570. Allegations of a pro se complaint are held to less stringent standards than formal pleading drafted by

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lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro

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se pleadings is required after Twombly and Iqbal).

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Plaintiff’s Complaint attempts to state claims under 42 U.S.C. § 1983 against Defendants. See, e.g.,

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Docket No. 1-1 at 1 (providing that Plaintiff’s complaint is brought “pursuant to 42 U.S.C. § 1983”). To

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state a claim under § 1983, a plaintiff must allege that a right secured by the Constitution has been violated,

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and the deprivation was committed by a person acting under color of law. See West v. Atkins, 487 U.S. 42

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(1988).

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Plaintiff alleges that, on June 16, 2013, Defendant Michael Donovan responded to a report that

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Plaintiff was shooting people with “numerous BBs” using a gas-powered BB gun. Docket No. 1-1 at 5.

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Plaintiff further alleges that Defendant Donovan ordered Plaintiff to stop, but Plaintiff tossed the gun away

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and fled. Id. Plaintiff alleges that Defendant Donovan then discharged his weapon, striking Plaintiff at

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least four times. Id.

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In Count I, Plaintiff alleges that various defendants used excessive force in violation of the Eighth

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and Fourteenth Amendments to the United States Constitution as well as unspecified provisions of the

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constitution of the State of Nevada. Id. at 4.

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“Where, as here, the excessive force claim arises in the context of an arrest . . . of a free citizen, it

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is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees

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citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizure.’” Graham v. Connor,
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490 U.S. 386, 394 (1989); see also Smith v. City of Hemet, 394 F.3d 689, 700 (9th Cir. 2005) (en banc) (“A

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Fourth Amendment claim of excessive force is analyzed under the framework outlined by the Supreme

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Court in Graham”). “The first inquiry in any § 1983 suit is to isolate the precise constitutional violation

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with which the defendant is charged[.]” Graham, 490 U.S. at 394 (internal quotations omitted).

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In Graham, the Court made explicit that “all claims that law enforcement officers have used

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excessive force . . . should be analyzed under the Fourth Amendment[.]” Id. Plaintiff submits that the

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officers “used excessive force[,]” but alleges claims under the Eighth and Fourteenth Amendments. Docket

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No. 1-1 at 4. Graham, however, foreclosed on this line of reasoning. Further, Plaintiff alleges that

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Defendants’ conduct violated unspecified portions of the “Nevada Constitution[.]” Docket No. 1-1 at 4.

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It is unclear to what rights he refers. Accordingly, Count I of Plaintiff’s Complaint fails to state a claim

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for which relief may be granted.

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Plaintiffs remaining counts fail to sufficiently allege that a right secured by the Constitution has

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been violated, asserting only the following allegations: “Assault [and] Battery . . . with Intent to Cause

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Substantial Bodily Harm or Death[,]” Id. at 7; “Conspiracy to Deprive Plaintiff of His Civil Rights[,]” Id.

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at 8; “Fabrication of False Evidence For Purpose of Concealing Wilful, Deliberate [and] Intentional

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Violations of Civil Rights And Violations of Federal [and] State [law,]” Id. at 9; “Intentional . . . Infliction

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of Physical and Emotional Distress[,] Id. at 10. None of these claims contains allegations that a specific

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right secured by the Constitution has been violated by a specific person acting under the color of law.

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Instead, Plaintiff provides only labels and conclusions, which fail to satisfy Rule 8. See Iqbal, 556 U.S.

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at 678.

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Even liberally construing Plaintiff’s Complaint, it is clear that Plaintiff fails to provide a short and
plain statement of his claims showing that he is entitled to relief.

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IT IS ORDERED that:

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1.

The Clerk of the Court shall file the Complaint.

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2.

The Complaint is DISMISSED with leave to amend.

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3.

Plaintiff will have until May 26, 2016, to file an Amended Complaint, if he believes he can

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correct the noted deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is

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informed that the Court cannot refer to a prior pleading (i.e., his original Complaint) in
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order to make the Amended Complaint complete. This is because, as a general rule, an

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Amended Complaint supersedes the original Complaint. See Loux v. Rhay, 375 F.2d 55, 57

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(9th Cir. 1967). Local Rule 15-1 requires that an Amended Complaint be complete in itself

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without reference to any prior pleading. Once a plaintiff files an Amended Complaint, the

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

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

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must be 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: April 26, 2016

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________________________________________
NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE

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