Albanese v. Federal Bureau of Investigations

Filing 6

REPORT AND RECOMMENDATION Recommending to dismiss case 5 Amended Complaint. Objections to R&R due by 7/20/2017. Signed by Magistrate Judge Nancy J. Koppe on 7/6/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 GRACE ALBANESE, 13 ) ) ) ) ) ) ) ) ) ) 14 Upon granting an application to proceed in forma pauperis, courts additionally screen the 15 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action 16 is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 17 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When 18 a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 19 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 20 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 21 1103, 1106 (9th Cir. 1995). 9 Plaintiff(s), 10 v. 11 FEDERAL BUREAU OF INVESTIGATIONS, 12 Defendant(s). Case No. 2:17-cv-01662-JAD-NJK Report and Recommendation 22 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 23 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 24 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th 25 Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing 26 that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 27 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more 28 than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft 1 v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court 2 must accept as true all well-pled factual allegations contained in the complaint, but the same 3 requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the 4 elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. 5 Secondly, where the claims in the complaint have not crossed the line from conceivable to plausible, 6 the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se complaint 7 are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 8 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required 9 after Twombly and Iqbal). 10 On June 23, 2017, the Court screened Plaintiff’s complaint and found that her allegations 11 failed to state a claim. Docket No. 3. The Court granted Plaintiff leave to amend. Id. Plaintiff has 12 now filed an amended complaint that suffers from the same deficiencies outlined previously. Docket 13 No. 5. Moreover, given Plaintiff’s inability to cure those deficiencies despite being given an 14 opportunity to do so, further amendment would be futile. 15 RECOMMENDS that this case be DISMISSED. 16 For these reasons, the undersigned DATED: July 6, 2017 17 18 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 19 20 NOTICE 21 Pursuant to Local Rule IB 3-2, any objection to this Report and Recommendation must be 22 in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has 23 held that the courts of appeal may determine that an appeal has been waived due to the failure to file 24 objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also 25 held that (1) failure to file objections within the specified time and (2) failure to properly address and 26 brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 27 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 28 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). -2-

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