Albanese v. Las Vegas Metropolitan Police Department

Filing 13

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis; Amended Complaint deadline: 11/4/2016. Plaintiff's Complaint is dismissed without prejudice with leave to amend. Signed by Magistrate Judge George Foley, Jr on 10/3/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GRACE ALBANESE,

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Plaintiff,
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT,
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Defendant.
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__________________________________________)

Case No. 2:16-cv-00532-RFB-GWF
ORDER
Application to Proceed in Forma
Pauperis (ECF No. 1) and Screening
of Complaint (ECF No. 1-1)

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This matter comes before the Court on Plaintiff’s Application to Proceed in Forma
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Pauperis (ECF No. 1), filed on March 9, 2016.
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DISCUSSION
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I.

Application to Proceed In Forma Pauperis

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Plaintiff filed this instant action and attached a financial affidavit to her application and
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complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff’s financial affidavit pursuant to
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28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result,
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Plaintiff's request to proceed in forma pauperis in federal court is granted.
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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 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to
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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which
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relief may be granted, or seeks monetary relief from a defendant/third party plaintiff who is
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immune from such relief. 28 U.S.C. § 1915(e)(2).
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Under Rule 8(a)(2), a pleading must contain a “short and plaint statement of the claim

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showing that the pleader is entitled to relief.” “[T[he pleading standard Rule 8 announces does not

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require detailed factual allegations, but it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949

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(2009) citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). Mere

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“labels or conclusions” or a “formulaic recitation of the elements of a cause of action” will not

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suffice. Id. Neither will naked assertions that are devoid of further factual enhancement. Id.

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Plaintiff’s one-page complaint provides the Court with no factual basis for her claims

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whatsoever. It appears to allege a claim against the Las Vegas Metropolitan Police Department for

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“Lack of Due Process of Warantless Surveillence [sic]” and states that the Court’s jurisdiction is

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“Clark County, Civil Rights.” Complaint (ECF No. 1-1). This is simply inadequate and the Court

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cannot conduct a screening of Plaintiff’s complaint. The Court recognizes that Plaintiff has

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submitted several letters to the Court that shed some light on her claims. See Letters (ECF No.

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2–12). However, a complaint must be complete in and of itself and the Court cannot refer to other

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pleadings or documents to make Plaintiff’s complaint whole. See In re Am. Apparel, Inc. S'holder

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Litig., 855 F. Supp. 2d 1043, 1060 (C.D. Cal. 2012) (holding that on a motion to dismiss the court

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is confined to the complaint and does not consider material outside the pleading); Hal Roach

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Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990) (“Generally, a

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district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6)

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motion. However, material which is properly submitted as part of the complaint may be considered

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on a motion to dismiss.”)(citation omitted). Therefore, the Court will dismiss Plaintiff’s complaint

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with leave to amend. Plaintiff is advised that she must provide the court with a proper factual basis

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for her claims in her amended complaint. In addition, Plaintiff’s complaint appears to be alleging

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civil rights violations that would be more adequately addressed pursuant to 42 U.S.C. § 1983.

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Thus, if Plaintiff elects to proceed, she is advised to bring this action pursuant to that statute.1

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If Plaintiff elects to proceed in this action by filing an amended complaint, she is informed

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Plaintiff may obtain a form for this type of complaint on the Unites States Courts website:
http://www.uscourts.gov/. The form is entitled Pro Se 15: Complaint for Violation of Civil Rights (Non-Prisoner).

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that the court cannot refer to a prior pleading in order to make her amended complaint complete.

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Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any

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prior pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Valdez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011); see Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended complaint, the original pleading no

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longer 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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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in Forma Pauperis is

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granted. Plaintiff shall not be required to pre-pay the full filing fee of four hundred dollars

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($400.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that the Clerk of Court shall file Plaintiff’s Complaint (ECF
No. 1-1).
IT IS FURTHER ORDERED that Plaintiff’s Complaint be dismissed without prejudice

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with leave to amend. Plaintiff shall have until November 4, 2016 to file an amended complaint

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correcting the noted deficiencies.

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DATED this 3rd day of October, 2016.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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