Zepeda v. LVMPD et al

Filing 15

ORDER. IT IS ORDERED that 14 Plaintiff's Amended Complaint is dismissed with prejudice. Signed by Judge Richard F. Boulware, II on 1/25/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EDWARDO ZEPEDA,

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Case No. 2:16-cv-01170-RFB-GWF
Plaintiff,

ORDER

v.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, et al.,
Defendants.

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Before the Court comes Plaintiff’s Amended Complaint, (ECF No. 14), filed on July 26,

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2017. The Court incorporates the background as set forth in the Magistrate Judge’s prior Order,

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(ECF No. 4).

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Federal courts must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

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that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek

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monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §

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1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation

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Reform Act (“PLRA”), a federal court must dismiss a prisoner’s claims, “if the allegation of

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poverty is untrue,” or if the action “is frivolous or malicious,” “fails to state a claim on which relief

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may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.”

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28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief may
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be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the

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same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended

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complaint.

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Review under Fed. R. Civ. P. 12(b)(6) is essentially a ruling on a question of law. See

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Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure

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to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support

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of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th

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Cir. 1999). Allegations in a pro se complaint are held to less stringent standards than formal

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pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404

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U.S. 519, 520-21 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require

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detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell

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Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964- 1965 (2007). A formulaic recitation of the

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elements of a cause of action is insufficient. Id., See Papasan v. Allain, 478 U.S. 265, 286 (1986).

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All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the

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prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on legal

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conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims

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of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful

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factual allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319,

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327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

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In a prior Order, Plaintiff was given the following instruction: “If Plaintiff fails to file an

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amended complaint or fails to cure the deficiencies identified above, the Court will recommend

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that the complaint be dismissed with prejudice.” (ECF No. 4). Plaintiff’s Amended Complaint fails

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to adequately state claims with sufficient detail, and does not address the deficiencies noted in the

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prior Order.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Amended Complaint (ECF No. 14) is dismissed with

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prejudice.

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DATED January 25, 2018.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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