Sager et al v. LVNV -Baltimore Social Security Administrations et al

Filing 6

ORDER that 1 Application for Leave to Proceed in forma pauperis is GRANTED. The Clerk of the Court shall FILE the Complaint (ECF No. 1-1) 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. Ms. Sager will have until April 5, 2017, to file her amended complaint, if she believes she can correct the noted deficiencies. FURTHER ORDERED that 5 Motion to Bring Forth $2,000 is DENIED. Signed by Magistrate Judge Peggy A. Leen on 3/3/17. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 8 MARGARET E. SAGER II, and VICTOR J. ALBANESE, 9 10 11 v. Case No. 2:16-cv-01706-GMN-PAL Plaintiffs, SCREENING ORDER (IFP App. – ECF No. 1; Mot. Bring Forth – ECF No. 5) LV, NV – BALTIMORE, MD SOCIAL SECURITY ADMINISTRATIONS, et al., Defendants. 12 13 This matter is before the court on Plaintiff Margaret E. Sager II’s Application to Proceed 14 In Forma Pauperis (ECF No. 1) and Motion to Bring Forth $2,000 (ECF No. 5). This Application 15 and Motion are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 16 and of the Local Rules of Practice. 17 I. IN FORMA PAUPERIS APPLICATION (ECF NO. 1) 18 Ms. Sager is proceeding in this action pro se, which means she is not represented by an 19 attorney. See LSR 2-1. Pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of Practice, 20 any person who is unable to prepay the fees in a civil case may apply to the court for authority to 21 proceed in forma pauperis (“IFP”), meaning without prepaying the full $400 filing fee. Here, 22 Sager has requested authority to proceed IFP and submitted the affidavit required by § 1915(a) 23 showing that she is unable to prepay fees and costs or give security for them. Accordingly, her 24 request to proceed IFP will be granted. 25 The court notes that no IFP application was received for Ms. Sager’s son, Victor J. 26 Albanese, whom she names in her initiating documents as a plaintiff. She states her son, who was 27 born in 1986, has been missing since July 4, 2016. She asks that the court award an immediate 28 $50 million dollars and bring her son back. As a general rule, pro se parties may not pursue claims 1 1 on behalf of others in a representative capacity. See, e.g., Simon v. Hartford Life, Inc., 546 F.3d 2 661, 665 (9th Cir. 2008) (collecting cases); Johns v. County of San Diego, 114 F.3d 874, 876 (9th 3 Cir. 1997) (holding that a parent or guardian may not bring suit in federal court on behalf of their 4 child without first retaining an attorney). Thus, only Sager will be recognized as the plaintiff in 5 the court’s analysis. 6 II. SCREENING THE COMPLAINT 7 After granting a litigant’s IFP request, a federal court must screen the complaint and any 8 amended complaints filed prior to a responsive pleading pursuant to § 1915(e). Lopez v. Smith, 9 203 F.3d 1122, 1129 (9th Cir. 2000). If the complaint states a valid claim for relief, the court will 10 direct the Clerk of the Court to issue summons to the defendant(s) and the plaintiff must then serve 11 the summons and complaint within 90 days. See Fed. R. Civ. P. 4(m). When a court dismisses a 12 complaint pursuant to § 1915(e), a plaintiff is ordinarily given leave to amend with directions as 13 to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could 14 not be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 15 Allegations in a pro se complaint are held to less stringent standards than formal pleading 16 drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 17 342 n.7 (9th Cir. 2010). However, pro se litigants “should not be treated more favorably than 18 parties with attorneys of record,” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); rather, 19 they must follow the same rules of procedure that govern other litigants. Ghazali v. Moran, 46 20 F.3d 52, 54 (9th Cir. 1995). 21 A. Ms. Sager’s Factual Allegations and Claims for Relief 22 The initiating document is titled “A Request for Immediate Relief” (ECF No. 1-1), which 23 the court will construe as her complaint. The complaint is legible, although difficult to follow, but 24 the court will try to accurately summarize her allegations. She appears to name as defendants LV, 25 NV – Baltimore, MD Social Security Administrations, Zarada from Nevada Legal Services, 26 Nevada State Welfare, Brian Sandoval, Shook & Stone Atty, Tod aka Malcome Lundgren “TV 27 Actor,” Aaron James Mitchell, LV, NV and Wash D.C. FBI, Michael G. Simon, and Elks Club. 28 Ms. Sager alleges that her son, Victor has been missing since July 2016, which she has told 2 1 the court in previous actions.1 She states that she has filed at least 50–60 criminal reports with the 2 police department but no officer or detective has helped her or her son. Since at least 2004, Sager 3 alleges that she and her son have been tortured daily. Defendants and others have forged United 4 States Treasury checks. Members of her family have committed “satanic, sadistic murders.” Thus, 5 she asks the court for immediate protection. 6 Ms. Sager further alleges that defendants keep her and her son from living in their homes. 7 Defendants beat them with broken bones, perform surgeries, including “lobotomies,” and place 8 them in facilities such as Rosen Neil, West Care Mental Health Unit, and UMC Mental Ward. 9 They have been shot at, set on fire, put in car accidents, locked up in vacant apartments, and 10 tortured. Thus, she asks that her son be brought to her and defendants be ordered to pay $50 11 million dollars to give her proper living conditions. For the reasons discussed below, the court finds that the complaint fails to state a claim 12 13 upon which relief can be granted 14 B. Legal Standard 15 Federal courts are required to dismiss an in forma pauperis action if the complaint fails to 16 state a claim upon which relief may be granted, is legally “frivolous or malicious,” or seeks 17 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In 18 determining whether a complaint is frivolous and therefore warrants complete or partial dismissal, 19 a court is not bound to accept without question truth of plaintiff’s allegations. Denton v. 20 Hernandez, 504 U.S. 25, 32 (1992). Allegations are frivolous when they are “clearly baseless,” 21 id., or lack an arguable basis in law and fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). 22 Frivolous claims include those based on legal conclusions that are untenable (e.g., claims against 23 defendants who are immune from suit or claims of infringement of a legal interest that clearly does 24 not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional 25 26 27 28 1 Both cases Ms. Sager identifies are closed. See Sager v. U.S. Government et al., No. 2:13-cv-00369MMD-VCF, Order (ECF No. 8) (accepting and adopting report and recommendation that the complaint be dismissed with prejudice as delusional and frivolous); Sager v. Southwell et al., No. 2:13-cv-01235-JADCWH, Order (ECF No. 12) (dismissing complaint based on Plaintiffs’ failure to pay the filing fee in compliance with the court’s order). 3 1 scenarios). Id. at 327–28; McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). The standard 2 for determining whether a plaintiff has failed to state a claim upon which relief can be granted 3 under § 1915 is the same as the standard under Rule 12(b)(6) of the Federal Rules of Civil 4 Procedure2 for failure to state a claim. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 5 Review under Rule 12(b)(6) is essentially a ruling on a question of law. N. Star Intern. v. Ariz. 6 Corp. Comm’n, 720 F.2d 578, 580 (9th Cir. 1983). 7 A district court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 8 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short 9 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 10 8(a)(2); accord Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The simplified pleading 11 standard set forth in Rule 8(a) applies to all civil actions with limited exceptions. Alvarez v. Hill, 12 518 F.3d 1152, 1159 (9th Cir. 2008). Although Rule 8 does not require detailed factual allegations, 13 it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 14 of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Mere recitals of the 15 elements of a cause of action supported only by conclusory allegations do not suffice. Iqbal, 556 16 U.S. at 679–80. Where the claims in the complaint have not crossed the line from plausible to 17 conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570. Stated differently, 18 the factual allegations “must plausibly suggest an entitlement to relief, such that it is not unfair to 19 require the opposing party to be subjected to the expense of discovery and continued litigation.” 20 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 21 C. Analysis 22 Ms. Sager’s complaint does not provide the statutory basis or legal theory for her claim but 23 she may be attempting to bring a civil rights claim. 42 U.S.C. § 1983 provides a mechanism for 24 the private enforcement of substantive rights conferred by the Constitution and federal statutes. 25 Graham v. Connor, 490 U.S. 386, 393–94 (1989). To state a claim under § 1983, a plaintiff must 26 allege: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and 27 the laws of the United States; (2) by a person acting under the color of state law. West v. Atkins, 28 2 Any reference to a “Rule” or the “Rules” in this Order refer to the Federal Rules of Civil Procedure. 4 1 487 U.S. 42, 48–49 (1988). 2 Sager’s allegations do not state which of her constitutional rights were violated. She does 3 not allege that defendants were acting under the color of state law. Defendants appear to be both 4 government and private individuals and entities. Generally, private people and entities not 5 affiliated with a state or municipal government do not act under color of state law. Florer v. 6 Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). Additionally, the 7 allegations do not specifically identify what conduct is attributable to each defendant. A plaintiff 8 must plead that each defendant, through their “own individual actions, has violated the 9 Constitution” to establish liability under § 1983. Hydrick v. Hunter, 669 F.3d 937, 941 (9th Cir. 10 2012). Because of these deficiencies, the complaint makes the sort of “bald” and “conclusory” 11 allegations the Supreme Court has determined are insufficient to establish individual liability under 12 § 1983. See Iqbal, 556 U.S. at 679–80. The complaint Sager submitted does not provide sufficient 13 allegations of underlying facts to give fair notice to defendants. See Starr, 652 F.3d at 1209–11, 14 1216. The complaint allegations appear fantastic and delusional. However, the court will give her 15 an opportunity to attempt to state a claim, and dismiss the complaint with leave to amend. 16 If Ms. Sager chooses to file an amended complaint, she must do so by April 5, 2017, using 17 the court’s civil rights complaint. LSR 2-1 of the Local Rules of Practice states that a “civil rights 18 complaint filed by a person who is not represented by counsel shall be on the form provided by 19 this Court.” Id. (emphasis added). The Clerk of the Court will be directed to mail Sager a blank 20 civil rights complaint along with the instructions for completing the form. 21 The amended complaint must contain a short and plain statement of: (1) the grounds for 22 the court’s jurisdiction; (2) any claim she has showing she is entitled to relief; and (3) a demand 23 for the relief she seeks. See Fed. R. Civ. P. 8(a). The amended complaint should set forth the 24 claims in short and plain terms, simply, concisely, and directly. See Swierkeiewicz v. Sorema N.A., 25 534 U.S. 506, 514 (2002). Ms. Sager is advised to support each of her claims with factual 26 allegations, because all complaints “must contain sufficient allegations of underlying facts to give 27 fair notice and to enable the opposing party to defend itself effectively.” Starr, 652 F.3d at 1216. 28 When claims are alleged against multiple defendants, the complaint should clearly indicate which 5 1 claims apply to which defendant. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1995). Sager 2 should specifically identify each defendant to the best of her ability, clarify what constitutional 3 right she believes each defendant has violated and support each claim with factual allegations 4 about each defendant’s actions. Where multiple claims are alleged, the complaint should identify 5 which factual allegations give rise to each particular claim. Id. She must state “enough facts to 6 raise a reasonable expectation that discovery will reveal evidence” of the allegations charged. 7 Cafasso, United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th 8 Cir. 2011) (quoting Twombly, 550 U.S. at 556). 9 Ms. Sager is also informed that the court cannot refer to a prior pleading (i.e., the original 10 complaint) in order to make the amended complaint complete. Local Rule 15-1 requires that an 11 amended complaint be complete in itself without reference to any prior pleading. See LR 15-1(a). 12 This is because, as a general rule, an amended complaint supersedes the original complaint. 13 Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Once a plaintiff files 14 an amended complaint, the original pleading no longer serves any function in the case. Ferdik v. 15 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Therefore, in an amended complaint, as in an 16 original complaint, each claim and the involvement of each defendant must be sufficiently alleged. 17 III. Ms. Sager’s request for relief will be denied as she has not stated a claim on which relief 18 19 MOTION TO BRING FORTH A $2,000 DOLLAR RELIEF (ECF NO. 5) may be granted, and no defendant has been served. 20 Based on the foregoing, 21 IT IS ORDERED: 22 1. Plaintiff Margaret E. Sager II’s Application to Proceed In Forma Pauperis (ECF No. 1) is GRANTED. She is not required to pay the $400 filing fee. 23 24 2. Ms. Sager is permitted to maintain this action to conclusion without the necessity of 25 prepayment of any additional fees or costs or the giving of a security therefor. This 26 Order granting leave to proceed in forma pauperis shall not extend to the issuance or 27 service of subpoenas at government expense. 28 /// 6 1 2 3. The Clerk of the Court shall FILE the Complaint (ECF No. 1-1) but SHALL NOT issue summons. 3 4. The Complaint is DISMISSED with leave to amend for a failure to state a claim upon 4 which relief can be granted. Ms. Sager will have until April 5, 2017, to file her 5 amended complaint, if she believes he can correct the noted deficiencies. 6 5. The amended complaint must be a complete document in and of itself and will 7 supersede the original complaint in its entirety. Any allegations, parties, or requests 8 for relief from prior papers that are not carried forward in the amended complaint will 9 no longer be before the court. 10 6. Ms. Sager shall clearly title the amended complaint as such by placing the words 11 “FIRST AMENDED” immediately above “Civil Rights Complaint Pursuant to 42 12 U.S.C. § 1983” on the first page in the caption, and shall place the case number, 2:16- 13 cv-01706-GMN-PAL, in the space for “Case No.” 14 7. Ms. Sager’s failure to comply with this Order by filing an amended complaint before 15 the April 5, 2017 deadline will result in a recommendation to the district judge that this 16 case be dismissed. 17 8. The Motion to Bring Forth $2,000 (ECF No. 5) is DENIED. 18 Dated this 3rd day of March, 2017. 19 20 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 7

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