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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRIAN BORENSTEIN,

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Plaintiff,
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vs.
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EMERALD SUITES,
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Defendant.
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__________________________________________)

Case No. 2:17-cv-01341-JCM-CWH
SCREENING ORDER AND
REPORT AND
RECOMMENDATION

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Presently before the court is pro se Plaintiff Brian Borenstein’s application to proceed in

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forma pauperis (ECF No. 1), filed on May 11, 2017. Also before the court are various case-

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initiating documents (ECF No. 1-2), filed on the same date. Also before the court is Plaintiff’s

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motion to stay eviction (ECF No. 3), filed on May 15, 2017.

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I.

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IN FORMA PAUPERIS APPLICATION
Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability

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

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forma pauperis will be granted.

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II.

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SCREENING COMPLAINT
Upon granting a request to proceed in forma pauperis, a court must screen the complaint

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under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims

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and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be

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granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for

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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d

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1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only

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dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his

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claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)

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(quoting Iqbal, 556 U.S. at 678).

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In considering whether the complaint is sufficient to state a claim, all allegations of material

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fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit

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P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although

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the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must

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provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is

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clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should

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be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Here, Plaintiff did not submit a complaint to the court. Instead, he filed various documents

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including a letter to Senator Masto stating that he is disabled, that he is in the process of being

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evicted from his apartment at the Emerald Suites, and describing issues with methamphetamine

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labs and other problems he has encountered while living there. (See ECF No. 1-1 at 1.) He also

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submitted a five-day notice to pay rent, a state court docket sheet relating to summary eviction

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proceedings brought by Emerald Suites against Plaintiff, Social Security records, a receipt of a

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payment to Emerald Suites, TD Ameritrade account statements, and various other documents. (Id.

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at 2-29.) The court construes this assortment of documents as a complaint.

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Liberally construing these documents, the court understands Plaintiff to be attempting to

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bring claims related to an eviction from his apartment at the Emerald Suites. Given that Plaintiff

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did not file a formal complaint, however, the court has not been provided with any factual

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allegations, such as the general circumstances surrounding the eviction or the reasons Plaintiff

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contends it was unlawful. Additionally, Plaintiff does not include any statement of the grounds for

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the court’s jurisdiction in this case. Without factual allegations regarding the underlying dispute

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between Plaintiff and Emerald Suites, the court cannot evaluate whether Plaintiff’s complaint states
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a claim against this party. The court therefore will recommend dismissal of Plaintiff’s complaint

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without prejudice for the Plaintiff to file an amended complaint.

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If Plaintiff chooses to file an amended complaint, the document must be titled “Amended

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Complaint.” The amended complaint must contain a short and plain statement describing the

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underlying case, the defendant’s involvement in the case, and the approximate dates of its

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involvement. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of Civil Procedure adopt a

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flexible pleading standard, Plaintiff still must give a defendant fair notice of the Plaintiff’s claims

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against it and Plaintiff’s entitlement to relief.

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The amended complaint also must contain a short and plain statement of the grounds for the

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court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Regarding jurisdiction, Plaintiff is advised that

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“[f]ederal district courts are courts of limited jurisdiction, possessing only that power authorized by

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Constitution and statute.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1027 (9th Cir.

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2011) (quotation omitted). Federal district courts “have original jurisdiction of all civil actions

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arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal

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district courts have original jurisdiction over civil actions in diversity cases “where the matter in

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controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of

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different States.” 28 U.S.C. § 1332(a). “Section 1332 requires complete diversity of citizenship;

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each of the plaintiffs must be a citizen of a different state than each of the defendants.” Morris v.

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Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).

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Additionally, Plaintiff is advised that if he files an amended complaint, the original

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complaint (ECF No. 1-1) no longer serves any function in this case. As such, the amended

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complaint must be complete in and of itself without reference to prior pleadings or other

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documents. The court cannot refer to a prior pleading or other documents to make Plaintiff’s

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amended complaint complete.

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III.

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MOTION TO STAY EVICTION
Plaintiff’s motion to stay the eviction states that he is disabled and requests that the court

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stay his eviction under the ADA. He further states that he cannot write well and that he has no

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help. To the extent Plaintiff requests injunctive relief in the form of an order staying his eviction,
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the court will recommend that this request be denied without prejudice for Plaintiff to refile the

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motion after he files an amended complaint.

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IV.

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CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In Forma

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Pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this

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action. 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 for fees or costs. This order

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granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at

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government expense.

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IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff’s complaint
(ECF No. 1-1).

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IT IS RECOMMENDED that the complaint (ECF No. 1-1) be DISMISSED without

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prejudice for failure to state a claim upon which relief can be granted, with leave to amend.

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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.

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DATED: May 17, 2017

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________________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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