Albanese v. Las Vegas Metropolitan Police Department

Filing 3

Plaintiff's request to proceed IFP (ECF No. 1 ) is GRANTED. Clerk shall file the Complaint. The Complaint is DISMISSED with leave to amend. Amended complaint due by 6/9/2017. Signed by Magistrate Judge Nancy J. Koppe on 5/10/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 GRACE ALBANESE, et al., 14 ) ) ) ) ) ) ) ) ) ) ) 15 Plaintiff Grace Albanese, proceeding in this action pro se, has requested authority pursuant 16 to 28 U.S.C. § 1915 to proceed in forma pauperis, and submitted a complaint on May 8, 2017. 17 Docket Nos. 1, 1-1. 18 I. 10 Plaintiff(s), 11 vs. 12 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, 13 Defendant(s). Case No. 2:17-cv-01284-MMD-NJK ORDER In Forma Pauperis Application 19 Plaintiff has submitted the affidavit required by § 1915 showing an inability to prepay fees 20 and costs or give security for them. Accordingly, Plaintiff’s request to proceed in forma pauperis 21 will be granted pursuant to 28 U.S.C. § 1915(a). The Court will now review Plaintiff’s Complaint. 22 II. Screening the Complaint 23 Upon granting a request to proceed in forma pauperis, the Court additionally screens the 24 complaint pursuant to § 1915. 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 the 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 Atl. Corp. v. Twombly, 550 U.S. 8 544, 555 (2007). Although Rule 81 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.” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 11 The court must accept as true all well-pled factual allegations contained in the complaint, but the 12 same 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 Additionally, where the claims in the complaint have not crossed the line from conceivable to 15 plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se 16 complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. 17 Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings 18 is required after Twombly and Iqbal). 19 In this instance, Plaintiff has submitted a one-page complaint that mentions “obstruction of 20 justice” and “equal protection under the law.” See Docket No. 1-1. Plaintiff fails to cite any specific 21 statutes or constitutional provisions. Id. Further, she fails to set forth in sufficient detail the facts 22 underlying this action. Id. As a preliminary matter, therefore, Plaintiff’s complaint fails to satisfy 23 Rule 8’s basic requirements and therefore fails to state a claim upon which relief can be granted. 24 25 26 1 27 Unless otherwise stated, all references to “Rules” denote the Federal Rules of Civil Procedure. 28 2 1 Additionally, the sole defendant that Plaintiff names is the Las Vegas Metropolitan Police 2 Department (“LVMPD”). Id. The Ninth Circuit has held that, pursuant to Federal Rule of Civil 3 Procedure 17(b), state law determines whether a department of a municipality may sue or be sued. 4 See, e.g., Streit v. Cty. of Los Angeles, 236 F.3d 552, 565 (9th Cir. 2001). LVMPD is a department 5 of the City of Las Vegas and, “[i]n the absence of statutory authorization, a department of the 6 municipal government may not, in the department name, sue or be sued.” Wayment v. Holmes, 912 7 P.2d 816, 819 (Nev. 1996) (citing 64 C.J.S. Municipal Corporations § 2195 (1950)); see Schneider 8 v. Elko Cty. Sheriff’s Dep’t, 17 F. Supp. 2d 1162, 1665 (D. Nev. 1998); see also Wallace v. City of 9 N. Las Vegas, 2011 WL 2971241, at *1 (D. Nev. 2011) (“Plaintiffs have not identified any statutory 10 authority that permits the Department to be sued, and the court is unaware of any such authority”); 11 Cerros v. N. Las Vegas Police Dep’t, 2008 WL 608641, at *9 (D. Nev. 2008) (“Nevada does not 12 grant authorization of a police department to sue or be sued”). Thus, Plaintiff has not demonstrated 13 that LVMPD is a proper defendant in this action.2 The Court will give Plaintiff an opportunity to 14 cure the aforementioned deficiencies. 15 III. Conclusion 16 Accordingly, IT IS ORDERED that: 17 1. 18 19 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 20 prepayment of any additional fees or costs or the giving of a security therefor. This 21 Order granting leave to proceed in forma pauperis shall not extend to the issuance 22 23 2 27 To the extent that Plaintiff wishes to allege municipal liability against the City of Las Vegas under 42 U.S.C. § 1983, she must demonstrate the existence of “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers” or a “governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels” that resulted in a violation of her civil rights. Monell v. Dep’t of Social Serv. of City of N.Y., 436 U.S. 658, 690-91 (1978). Plaintiff has not made this showing. See Docket No. 1-1. 28 3 24 25 26 1 and/or service of subpoenas at government expense. 2 3. The Clerk of the Court shall file the Complaint. 3 4. The Complaint is DISMISSED with leave to amend. Plaintiff will have until June 4 9, 2017, to file an Amended Complaint, if she believes she can correct the noted 5 deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is informed that 6 the Court cannot refer to a prior pleading (i.e., her original Complaint) in order to 7 make the Amended Complaint complete. This is because, as a general rule, an 8 Amended Complaint supersedes the original Complaint. Local Rule 15-1(a) requires 9 that an Amended Complaint be complete in itself without reference to any prior 10 pleading. Once a plaintiff files an Amended Complaint, the original Complaint no 11 longer serves any function in the case. Therefore, in an Amended Complaint, as in 12 an original Complaint, each claim and the involvement of each Defendant must be 13 sufficiently alleged. 14 recommended dismissal of this case. 15 IT IS SO ORDERED. 16 Failure to comply with this order will result in the DATED: May 10, 2017. 17 18 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 4

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