Freire v. Las Vegas Metro Police Department et al

Filing 5

REPORT AND RECOMMENDATION. The undersigned RECOMMENDS that Plaintiff's complaint be DISMISSED with prejudice and that his application to proceed in forma pauperis be DENIED as moot. Objections to R&R due by 7/17/2017. Signed by Magistrate Judge Nancy J. Koppe on 7/3/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ANTONIO LUIS FREIRE,

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Plaintiff(s),
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT, et al.,
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Defendant(s).
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__________________________________________)

Case No. 2:17-cv-01558-APG-NJK
Report and Recommendation

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Plaintiff brings this case pro se and is seeking to appear in forma pauperis pursuant to 28 U.S.C.

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§ 1915. Federal courts have the authority to dismiss a case if the action is“frivolous or malicious,” fails

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to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune

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from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for failure

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to state a claim upon which relief may be granted “if it appears beyond a doubt that the plaintiff can prove

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no set of facts in support of his claims that would entitle him to relief.” Buckey v. Los Angeles, 968 F.2d

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791, 794 (9th Cir. 1992). A complaint may be dismissed as frivolous if it is premised on a nonexistent legal

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interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Moreover, “a

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finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the

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wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton

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v. Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under § 1915(e), the plaintiff

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should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear

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from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United

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

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Plaintiff purports to bring claims against various state governmental entities and officers. Although

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not entirely clear, it appears that these claims stem from Plaintiff’s arrests and family court proceedings.

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See, e.g., Docket No. 1-1 at 5. Plaintiff alleges that law enforcement agencies violated their oaths of office

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and contracts with Plaintiff arising out of those events. See, e.g., id. at 5, 8. Plaintiff also alleges that

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several state court judges “levied war” against him and had him “held for ransom.” See id. at 8. The

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complaint includes various ramblings that appear unrelated to Plaintiff’s arrests and family court

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proceedings. See, e.g., id. at 10 (“Traitors, Protestants, Liberals and Heretics take heed for I oppose your

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causes for I am a dignitary to assist the injured off of the battlefield”). Plaintiff claims he is entitled to

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millions of dollars in accordance with his fee schedule. See id. at 8; see also id. at 4 (claiming more than

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$100,000 for each felony offense allegedly committed).

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In light of the frivolous and delusional nature of Plaintiff’s claims, the undersigned

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RECOMMENDS that Plaintiff’s complaint be DISMISSED with prejudice and that his application to

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proceed in forma pauperis be DENIED as moot.

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Dated: July 3, 2017
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NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE

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NOTICE

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Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be in writing

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and filed with the Clerk of the Court within (14) days after service of this Notice. The Supreme Court has

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held that the courts of appeal may determine that an appeal has been waived due to the failure to file

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objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985), reh’g denied, 474 U.S. 1111

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(1986). The Ninth Circuit has also held that (1) failure to file objections within the specified time and (2)

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failure to properly address and brief the objectionable issues waives the right to appeal the District Court’s

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order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153,

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1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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