Bullocks Jr v. City of North Las Vegas

Filing 4

ORDER. IT IS ORDERED that 3 Application for Leave to Proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall file the Complaint. IT IS FURTHER ORDERED that the Complaint is DISMISSED with leave to amend. Plaintiff will have until 12/15/16, to file an Amended Complaint, if he believes he can correct the noted deficiencies. Signed by Magistrate Judge Nancy J. Koppe on 11/15/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LEON BULLOCKS, JR.,

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Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C.

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§ 1915 to proceed in forma pauperis. Docket No. 3. Plaintiff submitted a complaint. Docket No.

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1-1.

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I.

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Plaintiff(s),
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vs.
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CITY OF NORTH LAS VEGAS,
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Defendant(s).

Case No. 2:16-cv-02478-JAD-NJK
ORDER

In Forma Pauperis Application

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Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees

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and costs or give security for them. Docket No. 3. Accordingly, the request to proceed in forma

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pauperis will be granted pursuant to 28 U.S.C. § 1915(a).

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INSTRUCTED to file the complaint on the docket. The Court will now review Plaintiff’s

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complaint.

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II.

The Clerk’s Office is further

Screening the Complaint

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Upon granting a request to proceed in forma pauperis, courts additionally screen the

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complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action

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is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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

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a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the

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complaint with directions as to curing its deficiencies, unless it is clear from the face of the

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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d

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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

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for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th

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Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing

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that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more

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than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court

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must accept as true all well-pled factual allegations contained in the complaint, but the same

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requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the

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elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678.

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Secondly, where the claims in the complaint have not crossed the line from conceivable to plausible,

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the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se complaint

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are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627

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F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required

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after Twombly and Iqbal).

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Plaintiff’s complaint revolves around allegations that the City of North Las Vegas violated

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his civil rights by posting a false record of criminal arrest and conviction, which led to Plaintiff’s

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false arrest. See Docket No. 1-1 at 3. The only defendant sued by Plaintiff is the City of North Las

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Vegas. Local governments, such as municipalities, can be sued under § 1983, but only for “a policy

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statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s

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officers” or for a “governmental ‘custom’ even though such a custom has not received formal

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approval through the body’s official decisionmaking channels.” Monell v. Dept. of Soc. Serv. of City
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of N.Y., 436 U.S. 658, 690-91 (1978). Here, Plaintiff has not alleged that any particular statement,

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ordinance, regulation, decision or custom exists that violates his constitutional rights or that any

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misconduct was the result of a failure to train, and he has not stated a Monell claim against the City

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of North Las Vegas.

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Moreover, the Supreme Court has held that a § 1983 action cannot be used to collaterally

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attack a criminal conviction unless the conviction or sentence has been reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make such a

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determination, or called into question by a federal court’s issuance of a writ of habeas corpus. See

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Heck v. Humphrey, 512 U.S. 477, 484 (1994). In determining whether a § 1983 claim is barred by

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Heck, the critical question is whether finding in the plaintiff’s favor would necessarily imply the

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invalidity of his conviction or sentence. See, e.g., Szajer v. City of Los Angeles, 632 F.3d 607, 611

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(9th Cir. 2011). Although not entirely clear, it appears that Plaintiff’s arrest resulted in his

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conviction. See Docket No. 1-1 at 4 (noting jail time serve).1 The Court is unable to determine

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whether Plaintiff states a claim, however, because he has failed to allege whether that arrest led to

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a conviction and, if so, whether that conviction has been reversed on direct appeal, expunged by

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executive order, declared invalid, or called into question.

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Accordingly, the complaint fails to state a claim on which relief can be granted.
III.

Conclusion

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Accordingly, IT IS ORDERED that:

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1.

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Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not
be required to pay the filing fee of four hundred dollars ($400.00).

2.

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Plaintiff is permitted to maintain this action to conclusion without the necessity of
prepayment of any additional fees or costs or the giving of a security therefor. This

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In a previous case, Plaintiff alleged a similar arrest and resulting conviction. See Bullocks
v. Brooks, Case No. 2:14-cv-1950-RCJ-PAL, Docket No. 1-1 at 6 (D. Nev.) (alleging that Plaintiff
pleaded guilty). That case was dismissed on the same grounds outlined herein. See Bullocks v.
Brooks, 2015 U.S. Dist. Lexis 42082 (D. Nev. Feb. 4, 2015), adopted 2015 U.S. Dist. Lexis 42087
(D. Nev. Mar. 31, 2015). It is not clear whether the arrest in Plaintiff’s previous case is also an arrest
at issue in this case.
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Order granting leave to proceed in forma pauperis shall not extend to the issuance

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and/or service of subpoenas at government expense.

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The Clerk of the Court shall file the Complaint.

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The Complaint is DISMISSED with leave to amend. Plaintiff will have until

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December 15, 2016, to file an Amended Complaint, if he believes he can correct the

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

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that the Court cannot refer to a prior pleading (i.e., his original Complaint) in order

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to make the Amended Complaint complete. This is because, as a general rule, an

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Amended Complaint supersedes the original Complaint. Local Rule 15-1(a) requires

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that an Amended Complaint be complete in itself without reference to any prior

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pleading. Once a plaintiff files an Amended Complaint, the original Complaint no

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longer serves any function in the case. Therefore, in an Amended Complaint, as in

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an original Complaint, each claim and the involvement of each Defendant must be

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sufficiently alleged.

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recommended dismissal of this case.

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IT IS SO ORDERED.

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Failure to comply with this order will result in the

DATED: November 15, 2016

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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