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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD MADRID,

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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. 1. Plaintiff submitted a complaint. Docket No.

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1-2.

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I.

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Plaintiff,
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vs.
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METRO POLICE DEPARTMENT, et al.,
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Defendants.

Case No. 2:16-cv-02995-APG-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. 1. 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 purports to allege an action pursuant to Title 42, United States Code,

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Section 1983, against the Las Vegas Metropolitan Police Department and Tina Villarreal. See

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Docket No. 1-2. The complaint, however, fails to state which civil rights Plaintiff alleges to have

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been violated, fails to state a claim against Defendant Villarreal at all, and lacks a “short and plain

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statement of the claim” showing that Plaintiff is entitled to relief. See Twombly, 550 U.S. at 555.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must plead that a defendant, “acting under color

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of state law, caused the deprivation of a federal right.” OSU Student Alliance v. Ray, 699 F.3d 1053,

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1061 (9th Cir. 2012) (internal citation omitted). Here, Plaintiff fails to state the specific federal right

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allegedly infringed and, therefore, his cause of action fails to state a claim under § 1983.

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Further, the two named defendants are the Las Vegas Metropolitan Police Department, and

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Tina Villarreal, whom Plaintiff identifies solely as a neighbor. Docket No. 1-2. The Ninth Circuit

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has held that, pursuant to Federal Rule of Civil Procedure 17(b), state law determines the issue of

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whether a department of a municipality may sue or be sued. See, e.g., Streit v. County of Los Angeles,

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236 F.3d 552, 565 (9th Cir.2001). The Las Vegas Metropolitan Police Department is a department

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of the City of Las Vegas and, “[i]n the absence of statutory authorization, a department of the

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municipal government may not, in the departmental name, sue or be sued.” Wayment v. Holmes, 912

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P.2d 816, 819 (Nev.1996) (citing 64 C.J.S Municipal Corporations § 2195 (1950)); see Schneider

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v. Elko Cnty. Sheriff's Dep't, 17 F.Supp.2d 1162, 1165 (D.Nev.1998). See also Wallace v. City of

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North Las Vegas, 2011 WL 2971241, *1 (D.Nev. 2011) (“Plaintiffs have not identified any statutory

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authority that permits the Department to be sued, and the court is unaware of any such authority”);

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Cerros v. North Las Vegas Police Department, 2008 WL 608641, *9 (D.Nev. 2008) (“Nevada does

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not grant authorization of a police department to sue or be sued”).

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Additionally, Plaintiff has failed to allege that Defendant Villarreal acted under color of state

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law. In order to prevail in a § 1983 action, a plaintiff must demonstrate two elements: (1) the

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complainant has been deprived of a right “secured by the Constitution and the laws” of the United

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States, and (2) the action complained of was committed by a person acting under color of state law.

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Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156-57 (1978). As a general matter, it is presumed that

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private parties are not acting under color of state law for purposes of § 1983. See Simmons v.

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Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (plaintiff’s allegations

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insufficient to establish that a private party is a state actor under § 1983); see also Kirtley v. Rainey,

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326 F.3d 1088, 1092 (9th Cir. 2003) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Simply put, no

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right to be free from the infliction of constitutional deprivations by private individuals or entities

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exists. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).

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

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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).

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Plaintiff is permitted to maintain this action to conclusion without the necessity of

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prepayment of any additional fees or costs or the giving of a security therefor. This

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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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3.

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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February 8, 2017, 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: January 9, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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