Madrid v. Metro Police Department

Filing 4

ORDER Granting Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk of the Court shall file the Complaint. The Complaint is DISMISSED with leave to amend. Plaintiff will have until 2/8/2017 to file an Amended Complaint. Failure to comply with this order will result in the recommended dismissal of this case. Signed by Magistrate Judge Nancy J. Koppe on 1/9/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 RICHARD MADRID, 12 ) ) ) ) ) ) ) ) ) ) 13 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C. 14 § 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff submitted a complaint. Docket No. 15 1-2. 16 I. 8 Plaintiff, 9 vs. 10 METRO POLICE DEPARTMENT, et al., 11 Defendants. Case No. 2:16-cv-02995-APG-NJK ORDER In Forma Pauperis Application 17 Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees 18 and costs or give security for them. Docket No. 1. Accordingly, the request to proceed in forma 19 pauperis will be granted pursuant to 28 U.S.C. § 1915(a). 20 INSTRUCTED to file the complaint on the docket. The Court will now review Plaintiff’s 21 complaint. 22 II. The Clerk’s Office is further Screening the Complaint 23 Upon granting a request to proceed in forma pauperis, courts additionally screen the 24 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action 25 is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When 27 a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 28 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 1 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 2 1103, 1106 (9th Cir. 1995). 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 4 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 5 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th 6 Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing 7 that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 8 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more 9 than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft 10 v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court 11 must accept as true all well-pled factual allegations contained in the complaint, but the same 12 requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the 13 elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. 14 Secondly, where the claims in the complaint have not crossed the line from conceivable to plausible, 15 the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se complaint 16 are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 17 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required 18 after Twombly and Iqbal). 19 Plaintiff’s complaint purports to allege an action pursuant to Title 42, United States Code, 20 Section 1983, against the Las Vegas Metropolitan Police Department and Tina Villarreal. See 21 Docket No. 1-2. The complaint, however, fails to state which civil rights Plaintiff alleges to have 22 been violated, fails to state a claim against Defendant Villarreal at all, and lacks a “short and plain 23 statement of the claim” showing that Plaintiff is entitled to relief. See Twombly, 550 U.S. at 555. 24 To state a claim under 42 U.S.C. § 1983, a plaintiff must plead that a defendant, “acting under color 25 of state law, caused the deprivation of a federal right.” OSU Student Alliance v. Ray, 699 F.3d 1053, 26 1061 (9th Cir. 2012) (internal citation omitted). Here, Plaintiff fails to state the specific federal right 27 allegedly infringed and, therefore, his cause of action fails to state a claim under § 1983. 28 -2- 1 Further, the two named defendants are the Las Vegas Metropolitan Police Department, and 2 Tina Villarreal, whom Plaintiff identifies solely as a neighbor. Docket No. 1-2. The Ninth Circuit 3 has held that, pursuant to Federal Rule of Civil Procedure 17(b), state law determines the issue of 4 whether a department of a municipality may sue or be sued. See, e.g., Streit v. County of Los Angeles, 5 236 F.3d 552, 565 (9th Cir.2001). The Las Vegas Metropolitan Police Department is a department 6 of the City of Las Vegas and, “[i]n the absence of statutory authorization, a department of the 7 municipal government may not, in the departmental name, sue or be sued.” Wayment v. Holmes, 912 8 P.2d 816, 819 (Nev.1996) (citing 64 C.J.S Municipal Corporations § 2195 (1950)); see Schneider 9 v. Elko Cnty. Sheriff's Dep't, 17 F.Supp.2d 1162, 1165 (D.Nev.1998). See also Wallace v. City of 10 North Las Vegas, 2011 WL 2971241, *1 (D.Nev. 2011) (“Plaintiffs have not identified any statutory 11 authority that permits the Department to be sued, and the court is unaware of any such authority”); 12 Cerros v. North Las Vegas Police Department, 2008 WL 608641, *9 (D.Nev. 2008) (“Nevada does 13 not grant authorization of a police department to sue or be sued”). 14 Additionally, Plaintiff has failed to allege that Defendant Villarreal acted under color of state 15 law. In order to prevail in a § 1983 action, a plaintiff must demonstrate two elements: (1) the 16 complainant has been deprived of a right “secured by the Constitution and the laws” of the United 17 States, and (2) the action complained of was committed by a person acting under color of state law. 18 Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-57 (1978). As a general matter, it is presumed that 19 private parties are not acting under color of state law for purposes of § 1983. See Simmons v. 20 Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (plaintiff’s allegations 21 insufficient to establish that a private party is a state actor under § 1983); see also Kirtley v. Rainey, 22 326 F.3d 1088, 1092 (9th Cir. 2003) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Simply put, no 23 right to be free from the infliction of constitutional deprivations by private individuals or entities 24 exists. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996). 25 Accordingly, the complaint fails to state a claim on which relief can be granted. 26 .... 27 .... 28 .... -3- 1 III. Conclusion 2 Accordingly, IT IS ORDERED that: 3 1. 4 5 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. Plaintiff is permitted to maintain this action to conclusion without the necessity of 6 prepayment of any additional fees or costs or the giving of a security therefor. This 7 Order granting leave to proceed in forma pauperis shall not extend to the issuance 8 and/or service of subpoenas at government expense. 9 3. The Clerk of the Court shall file the Complaint. 10 4. The Complaint is DISMISSED with leave to amend. Plaintiff will have until 11 February 8, 2017, to file an Amended Complaint, if he believes he can correct the 12 noted deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is informed 13 that the Court cannot refer to a prior pleading (i.e., his original Complaint) in order 14 to make the Amended Complaint complete. This is because, as a general rule, an 15 Amended Complaint supersedes the original Complaint. Local Rule 15-1(a) requires 16 that an Amended Complaint be complete in itself without reference to any prior 17 pleading. Once a plaintiff files an Amended Complaint, the original Complaint no 18 longer serves any function in the case. Therefore, in an Amended Complaint, as in 19 an original Complaint, each claim and the involvement of each Defendant must be 20 sufficiently alleged. 21 recommended dismissal of this case. 22 IT IS SO ORDERED. 23 Failure to comply with this order will result in the DATED: January 9, 2017 24 25 26 27 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 28 -4-

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