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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GRACE ALBANESE, et al.,

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Plaintiff Grace Albanese, proceeding in this action pro se, has requested authority pursuant

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to 28 U.S.C. § 1915 to proceed in forma pauperis, and submitted a complaint on May 8, 2017.

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Docket Nos. 1, 1-1.

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I.

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Plaintiff(s),
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vs.

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,

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Defendant(s).

Case No. 2:17-cv-01284-MMD-NJK
ORDER

In Forma Pauperis Application

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

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and costs or give security for them. Accordingly, Plaintiff’s request to proceed in forma pauperis

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will be granted pursuant to 28 U.S.C. § 1915(a). The Court will now review Plaintiff’s Complaint.

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II.

Screening the Complaint

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Upon granting a request to proceed in forma pauperis, the Court additionally screens the

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complaint pursuant to § 1915. 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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the 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 Atl. Corp. v. Twombly, 550 U.S.

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544, 555 (2007). Although Rule 81 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.”

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

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

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same 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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Additionally, where the claims in the complaint have not crossed the line from conceivable to

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

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complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v.

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Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings

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is required after Twombly and Iqbal).

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In this instance, Plaintiff has submitted a one-page complaint that mentions “obstruction of

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justice” and “equal protection under the law.” See Docket No. 1-1. Plaintiff fails to cite any specific

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statutes or constitutional provisions. Id. Further, she fails to set forth in sufficient detail the facts

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underlying this action. Id. As a preliminary matter, therefore, Plaintiff’s complaint fails to satisfy

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Rule 8’s basic requirements and therefore fails to state a claim upon which relief can be granted.

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Unless otherwise stated, all references to “Rules” denote the Federal Rules of Civil
Procedure.

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Additionally, the sole defendant that Plaintiff names is the Las Vegas Metropolitan Police

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Department (“LVMPD”). Id. The Ninth Circuit has held that, pursuant to Federal Rule of Civil

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Procedure 17(b), state law determines whether a department of a municipality may sue or be sued.

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See, e.g., Streit v. Cty. of Los Angeles, 236 F.3d 552, 565 (9th Cir. 2001). LVMPD 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 department 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 Cty. Sheriff’s Dep’t, 17 F. Supp. 2d 1162, 1665 (D. Nev. 1998); see also Wallace v. City of

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N. Las Vegas, 2011 WL 2971241, at *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. N. Las Vegas Police Dep’t, 2008 WL 608641, at *9 (D. Nev. 2008) (“Nevada does not

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grant authorization of a police department to sue or be sued”). Thus, Plaintiff has not demonstrated

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that LVMPD is a proper defendant in this action.2 The Court will give Plaintiff an opportunity to

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cure the aforementioned deficiencies.

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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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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.

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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 June

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9, 2017, to file an Amended Complaint, if she believes she can correct the noted

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

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

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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: May 10, 2017.

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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