Borenstein v. Emerald Suites

Filing 4

ORDER that 1 Application for Leave to Proceed in forma pauperis is GRANTED. The Clerk shall file plaintiff's complaint. REPORT AND RECOMMENDATION that the complaint be DISMISSED without prejudice for failure to state a claim upon which re lief can be granted, with leave to amend. FURTHER RECOMMENDED that Plaintiff be given a deadline to file an amended complaint. FURTHER RECOMMENDED that 3 Plaintiff's Motion to Stay Eviction be DENIED without prejudice. Objections to R&R due by 5/31/2017. Signed by Magistrate Judge Carl W. Hoffman on 5/17/17. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 BRIAN BORENSTEIN, ) ) Plaintiff, ) ) vs. ) ) EMERALD SUITES, ) ) Defendant. ) __________________________________________) Case No. 2:17-cv-01341-JCM-CWH SCREENING ORDER AND REPORT AND RECOMMENDATION 11 Presently before the court is pro se Plaintiff Brian Borenstein’s application to proceed in 12 13 forma pauperis (ECF No. 1), filed on May 11, 2017. Also before the court are various case- 14 initiating documents (ECF No. 1-2), filed on the same date. Also before the court is Plaintiff’s 15 motion to stay eviction (ECF No. 3), filed on May 15, 2017. 16 I. 17 IN FORMA PAUPERIS APPLICATION Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability 18 to prepay fees and costs or give security for them. Accordingly, Plaintiff’s request to proceed in 19 forma pauperis will be granted. 20 II. 21 SCREENING COMPLAINT Upon granting a request to proceed in forma pauperis, a court must screen the complaint 22 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 23 and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be 24 granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 26 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 27 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual 28 matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. 1 Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 2 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his 3 claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) 4 (quoting Iqbal, 556 U.S. at 678). 5 In considering whether the complaint is sufficient to state a claim, all allegations of material 6 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit 7 P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although 8 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must 9 provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 10 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is 11 clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should 12 be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. 13 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 14 Here, Plaintiff did not submit a complaint to the court. Instead, he filed various documents 15 including a letter to Senator Masto stating that he is disabled, that he is in the process of being 16 evicted from his apartment at the Emerald Suites, and describing issues with methamphetamine 17 labs and other problems he has encountered while living there. (See ECF No. 1-1 at 1.) He also 18 submitted a five-day notice to pay rent, a state court docket sheet relating to summary eviction 19 proceedings brought by Emerald Suites against Plaintiff, Social Security records, a receipt of a 20 payment to Emerald Suites, TD Ameritrade account statements, and various other documents. (Id. 21 at 2-29.) The court construes this assortment of documents as a complaint. 22 Liberally construing these documents, the court understands Plaintiff to be attempting to 23 bring claims related to an eviction from his apartment at the Emerald Suites. Given that Plaintiff 24 did not file a formal complaint, however, the court has not been provided with any factual 25 allegations, such as the general circumstances surrounding the eviction or the reasons Plaintiff 26 contends it was unlawful. Additionally, Plaintiff does not include any statement of the grounds for 27 the court’s jurisdiction in this case. Without factual allegations regarding the underlying dispute 28 between Plaintiff and Emerald Suites, the court cannot evaluate whether Plaintiff’s complaint states 2 1 a claim against this party. The court therefore will recommend dismissal of Plaintiff’s complaint 2 without prejudice for the Plaintiff to file an amended complaint. 3 If Plaintiff chooses to file an amended complaint, the document must be titled “Amended 4 Complaint.” The amended complaint must contain a short and plain statement describing the 5 underlying case, the defendant’s involvement in the case, and the approximate dates of its 6 involvement. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of Civil Procedure adopt a 7 flexible pleading standard, Plaintiff still must give a defendant fair notice of the Plaintiff’s claims 8 against it and Plaintiff’s entitlement to relief. 9 The amended complaint also must contain a short and plain statement of the grounds for the 10 court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Regarding jurisdiction, Plaintiff is advised that 11 “[f]ederal district courts are courts of limited jurisdiction, possessing only that power authorized by 12 Constitution and statute.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir. 13 2011) (quotation omitted). Federal district courts “have original jurisdiction of all civil actions 14 arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal 15 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 16 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 17 different States.” 28 U.S.C. § 1332(a). “Section 1332 requires complete diversity of citizenship; 18 each of the plaintiffs must be a citizen of a different state than each of the defendants.” Morris v. 19 Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). 20 Additionally, Plaintiff is advised that if he files an amended complaint, the original 21 complaint (ECF No. 1-1) no longer serves any function in this case. As such, the amended 22 complaint must be complete in and of itself without reference to prior pleadings or other 23 documents. The court cannot refer to a prior pleading or other documents to make Plaintiff’s 24 amended complaint complete. 25 III. 26 MOTION TO STAY EVICTION Plaintiff’s motion to stay the eviction states that he is disabled and requests that the court 27 stay his eviction under the ADA. He further states that he cannot write well and that he has no 28 help. To the extent Plaintiff requests injunctive relief in the form of an order staying his eviction, 3 1 the court will recommend that this request be denied without prejudice for Plaintiff to refile the 2 motion after he files an amended complaint. 3 IV. 4 CONCLUSION IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In Forma 5 Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this 6 action. Plaintiff is permitted to maintain this action to conclusion without the necessity of 7 prepayment of any additional fees or costs or the giving of a security for fees or costs. This order 8 granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at 9 government expense. 10 11 IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff’s complaint (ECF No. 1-1). 12 IT IS RECOMMENDED that the complaint (ECF No. 1-1) be DISMISSED without 13 prejudice for failure to state a claim upon which relief can be granted, with leave to amend. 14 15 16 17 IT IS FURTHER RECOMMENDED that Plaintiff be given a deadline to file an amended complaint. IT IS FURTHER RECOMMENDED that Plaintiff’s motion to stay eviction (ECF No. 3) be DENIED without prejudice. 18 19 DATED: May 17, 2017 20 21 22 ________________________________________ C.W. Hoffman, Jr. United States Magistrate Judge 23 24 25 26 27 28 4

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