Klucka v. Atkinson et al

Filing 2

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is DENIED. To proceed in this case, Mr. Klucka is required to pay the $400 filing fee before June 3, 2016. The Clerk of the Court SHALL FILE the Complaint (Dkt. #1), but SHALL NOT issue summons. The Complaint is DISMISSED with leave to amend for a failure to state a claim upon which relief can be granted. Mr. Klucka shall have until June 3, 2016, to file an amended complaint if he believes he can correct the noted d eficiencies. Mr. Klucka's failure to comply with this Order by: (a) paying the $400 filing fee, and (b) filing an amended complaint before the June 3, 2016 deadline will result in a recommendation to the district judge that this case be dismissed. Signed by Magistrate Judge Peggy A. Leen on 5/4/16. (Copies have been distributed pursuant to the NEF: blank 1983 form w/instructions & copy of complaint to plaintiff - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID KLUCKA,

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Plaintiff,
v.

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Case No. 2:15-cv-02108-JAD-PAL
ORDER

SUSAN ATKINSON, et al.,

(IFP App. – Dkt. #1)
Defendants.

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This matter is before the Court on Plaintiff David Klucka’s Application to Proceed In

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Forma Pauperis (Dkt. #1). This Application is referred to the undersigned pursuant to 28 U.S.C.

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§ 636(b)(1)(A) and LR IB 1-3 and 1-7 of the Local Rules of Practice.

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Mr. Klucka is a pretrial detainee in the custody of the Clark County Detention Center,

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and he proceeding in this action pro se. He has submitted a civil rights complaint pursuant to 42

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U.S.C. § 1983 and requested permission to proceed in forma pauperis (“IFP”), meaning without

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prepaying the full $400.00 filing fee.1

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However, on at least three (3) occasions, this Court has dismissed civil actions that Mr. Klucka

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commenced while in detention as frivolous or for a failure to state a claim upon which any relief

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may be granted. See Klucka v. Lippis, Case No. 2:05-cv-01285-JCM-GWF (D. Nev. Nov. 29,

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2006) (dismissing § 1983 claims against justice of the peace and deputy district attorney, who

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had absolute immunity from such claims); Klucka v. Barker, Case No. 2:15-cv-02162-JAD-NJK

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(D. Nev. Dec. 8, 2015) (dismissing § 1983 claims with prejudice against appointed counsel and

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investigator, who were not state actors); Klucka v. Powell, Case No. 2:15-cv-01609-RCJ-NJK

See Pl.’s Compl. (Dkt. #1-1); IFP App. (Dkt. #1).

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Pursuant to the Court’s Schedule of Fees dated January 1, 2015, the administrative fee of $50.00 does
not apply to persons granted in forma pauperis status under 28 U.S.C. § 1915. However, when the Court
denies a plaintiff in forma pauperis status, the full $400.00 filing fee applies.

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(D. Nev. Jan. 5, 2016) (dismissing § 1983 claims with prejudice against appointed counsel and

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investigator, who were not state actors); Klucka v. Almase, Case No. 2:15-cv-01658-RFB-PAL

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(D. Nev. Feb. 17, 2016) (dismissing § 1983 claims with prejudice against appointed counsel,

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who was not a state actor).2 Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more

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prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a

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court of the United States that was dismissed on the grounds that it is frivolous, malicious, or

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fails to state a claim upon which relief may be granted,” he may not proceed IFP and, instead,

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must pay the full $400.00 filing fee in advance unless he is “under imminent danger of serious

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physical injury.”

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In this case, Mr. Klucka alleges that Defendants acted as partners in a conspiracy, as

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agents of the police, to produce a doctored surveillance video. See generally Pl.’s Compl.

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(Dkt. #1-1). Although his Complaint names 31 Defendants in total, Klucka makes no specific

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allegations against any Defendants other than Powell and Logan. See generally Pl.’s Compl.

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(Dkt. #1-1) (naming Defendants Susan Atkinson, LaTrina Bulter, Irene Contreras, Mich

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Eddington, Stephanie Gherardin, Nathan Gilbert, Stacey Gonzalez, Bill Herndon, Joel Logan,

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Semyon Ostrovsky, Jonathan Powell, Randall Rego, James Rowe, Brian Swartwood, the D

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Casino, the Las Vegas Metropolitan Police Department, and John Does #1–#15). Mr. Klucka

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asserts that his appointed defense counsel, Defendant Jonathan Powell, “committed the crime of

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coercion” against him by refusing to show the original surveillance video at his preliminary

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hearing, withholding evidence from the court, and refusing to remove himself from Klucka’s

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case, among other alleged misdeeds. Id. at 13–14. Mr. Klucka further alleges that Powell had

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his investigator, Defendant Joel Logan, show Klucka a doctored video. Id. at 14.

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The Court finds that these allegations fail to plausibly allege that Mr. Klucka is in

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imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th

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Cir. 2007) (holding that the exception to § 1915(g) applies if the complaint makes a plausible

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allegation that the prisoner faced imminent danger of serious physical injury at the time of

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The Court takes judicial notice of its prior records in the above matters.

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filing). Thus, to proceed in this case, Klucka will be required to pay the full $400 filing fee and

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submit an amended complaint by June 3, 2016. The amended complaint must correct his failure

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to state a claim upon which relief may be granted.

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First, Mr. Klucka may not bring a § 1983 action against Defendants Powell and Logan

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because they are not state actors. Mr. Klucka has filed several complaints in the past making

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very similar, unmeritorious allegations, including a previous § 1983 action against Defendants

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Powell and Logan based on conduct that occurred in relation to Klucka’s criminal proceeding.

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See Klucka v. Powell, Case No. 2:15-cv-01609-RCJ-NJK. In that case, District Judge Robert C.

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Jones adopted the Report and Recommendation (Dkt. #10) by Magistrate Judge Nancy J. Koppe,

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which recommended dismissal with prejudice because neither Defendants Powell nor Logan are

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state actors. See id. (citing Polk County v. Dodson, 454 U.S. 312, 318–19 & n.7 (1981) (“It is

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well established that attorneys, whether retained or appointed, do not act ‘under color of state

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law’ in representing a plaintiff in a criminal proceeding.”). Here, Mr. Klucka is also alleging that

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Defendants Powell and Logan violated his rights based on conduct that occurred in relation to

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Klucka’s criminal proceeding. See Pl.’s Compl. (Dkt. #1-1). The case law clearly demonstrates

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that Mr. Klucka may not bring a § 1983 action against Defendants Powell and Logan. Thus, the

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allegations against Powell and Logan fail to state a claim upon which relief may be granted.

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Second, the remainder of the Complaint fails to state a valid claim based on the absence

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of specific allegations against 29 of the 31 Defendants. As the Ninth Circuit opined in Hydrick

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v. Hunter, 669 F.3d 937 (9th Cir. 2012), a plaintiff must plead that each defendant, through their

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“own individual actions, has violated the Constitution” to establish liability under 42 U.S.C.

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§ 1983. Id. at 941. The absence of specific allegations is significant because a plaintiff must

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allege sufficient facts to “plausibly establish” the defendants’ “‘knowledge of’” and

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“‘acquiescence in’” the unconstitutional conduct. Id. (citing Starr v. Baca, 652 F.3d 1202, 1206–

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07 (9th Cir. 2012)). Therefore, the allegations against the remaining Defendants fail to state a

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plausible claim.

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If Mr. Klucka chooses to file an amended complaint, he must do so by June 3, 2016. He

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is advised to support each of his claims with factual allegations, because all complaints “must
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contain sufficient allegations of underlying facts to give fair notice and to enable the opposing

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party to defend itself effectively.” Starr, 652 F.3d at 1216. Mr. Klucka should specifically

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identify each Defendant to the best of his ability, clarify what constitutional right he believes

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each Defendant has violated and support each claim with factual allegations about each

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Defendant’s actions. The amended complaint should set forth his claims in short and plain

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terms, simply, concisely and directly. See Swierkeiewicz v. Sorema N.A., 534 U.S. 506, 514

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(2002); Fed. R. Civ. Pro. 8.

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Mr. Klucka is also informed that the Court cannot refer to a prior pleading (i.e., the

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original complaint) in order to make the amended complaint complete. Local Rule 15-1 requires

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that an amended complaint be complete in itself without reference to any prior pleading. See D.

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Nev. LR 15-1(a) (amended May 1, 2016). This is because, as a general rule, an amended

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complaint supersedes the original complaint. Ramirez v. Cty. of San Bernardino, 806 F.3d 1002,

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1008 (9th Cir. 2015); Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (quoting Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967), and explaining, “when a plaintiff files an amended

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complaint, ‘the amended complaint supercedes the original, the latter being treated thereafter as

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non-existent’ ”). Once a plaintiff files an amended complaint, the original pleading no longer

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serves any function in the case. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement

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of each defendant must be sufficiently alleged.

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For the foregoing reasons,

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IT IS ORDERED:

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1. Plaintiff David Klucka’s Application to Proceed In Forma Pauperis (Dkt. #1) is

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DENIED. To proceed in this case, Mr. Klucka is required to pay the $400 filing fee

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before June 3, 2016.

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2. The Clerk of the Court SHALL FILE the Complaint (Dkt. #1), but SHALL NOT
issue summons.

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3. The Complaint is DISMISSED with leave to amend for a failure to state a claim

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upon which relief can be granted. Mr. Klucka shall have until June 3, 2016, to file an

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amended complaint if he believes he can correct the noted deficiencies.

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4. The Clerk of the Court shall mail Mr. Klucka one blank form complaint for § 1983

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civil rights actions along with the instructions for completing the form, one copy of

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the original Complaint, and one copy of this Order.

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5. The amended complaint must be a complete document in and of itself and will

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supersede the original complaint in its entirety. Any allegations, parties, or requests

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for relief from prior papers that are not carried forward in the amended complaint will

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no longer be before the court.

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6. Mr. Klucka shall clearly title the amended complaint as such by placing the words

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“FIRST AMENDED” immediately above “Civil Rights Complaint Pursuant to 42

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U.S.C. § 1983” on the first page in the caption, and Klucka shall place the case

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number, 2:15-cv-02108-JAD-PAL, in the space for “Case No.”

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7. Mr. Klucka’s failure to comply with this Order by: (a) paying the $400 filing fee, and

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(b) filing an amended complaint before the June 3, 2016 deadline will result in a

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recommendation to the district judge that this case be dismissed.

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Dated this 4th day of May, 2016.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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