Albanese v. Homeland Security

Filing 3

ORDER Granting Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall not be required to pay the filing fee of $400.00. The Clerk of the Court shall file the Complaint. The Complaint is DISMISSED with leave to amend. Plaintiff will have until 7/20/2017 to file an Amended Complaint. Signed by Magistrate Judge Nancy J. Koppe on 6/22/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 GRACE ALBANESE, 8 Plaintiff(s), 9 10 vs. HOMELAND SECURITY, 11 Defendant(s). ) ) ) ) ) ) ) ) ) ) Case No. 2:17-cv-01663-JCM-NJK ORDER 12 13 Plaintiff Grace Albanese, proceeding in this action pro se, has requested authority pursuant 14 to 28 U.S.C. § 1915 to proceed in forma pauperis, and submitted a complaint on June 14, 2017. 15 Docket Nos. 1, 1-1. 16 I. In Forma Pauperis Application 17 Plaintiff has submitted the affidavit required by § 1915 showing an inability to prepay fees 18 and costs or give security for them. Accordingly, Plaintiff’s request to proceed in forma pauperis 19 will be granted pursuant to 28 U.S.C. § 1915(a). The Court will now review Plaintiff’s Complaint. 20 II. Screening the Complaint 21 Upon granting a request to proceed in forma pauperis, the Court additionally screens the 22 complaint pursuant to § 1915. Federal courts are given the authority to dismiss a case if the action 23 is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 24 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When 25 the Court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 26 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 27 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 28 1103, 1106 (9th Cir. 1995). 1 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 2 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6)1 is 3 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th 4 Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing 5 that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 6 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more 7 than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 9 The court must accept as true all well-pled factual allegations contained in the complaint, but the 10 same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the 11 elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. 12 Additionally, where the claims in the complaint have not crossed the line from conceivable to 13 plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se 14 complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. 15 Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings 16 is required after Twombly and Iqbal). 17 In this instance, Plaintiff has submitted a one-page complaint alleging that she is being 18 stalked and that “Homeland Security” refuses to get involved. See Docket No. 1-1 at 2. Plaintiff 19 vaguely refers to “obstruction of justice,” due process, equal protection, and 42 U.S.C. § 1983, 20 without explaining how § 1983 applies to this action, or how any constitutional provisions have 21 allegedly been violated. Id. at 1-2. Further, she fails to set forth in sufficient detail the facts 22 underlying this action. Id. at 2. Thus, Plaintiff’s complaint fails to satisfy Rule 8’s basic 23 requirements and therefore fails to state a claim upon which relief can be granted. 24 25 26 27 28 1 Unless otherwise stated, all references to “Rules” denote the Federal Rules of Civil Procedure. 1 III. Conclusion 2 Accordingly, IT IS ORDERED that: 3 1. 4 5 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). 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 6 prepayment of any additional fees or costs or the giving of a security therefor. This 7 Order granting leave to proceed in forma pauperis shall not extend to the issuance 8 and/or service of subpoenas at government expense. 9 3. The Clerk of the Court shall file the Complaint. 10 4. The Complaint is DISMISSED with leave to amend. Plaintiff will have until July 11 20, 2017, to file an Amended Complaint, if she believes she can correct the noted 12 deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is informed that 13 the Court cannot refer to a prior pleading (i.e., her original Complaint) in order to 14 make the Amended Complaint complete. This is because, as a general rule, an 15 Amended Complaint supersedes the original Complaint. Local Rule 15-1(a) requires 16 that an Amended Complaint be complete in itself without reference to any prior 17 pleading. Once a plaintiff files an Amended Complaint, the original Complaint no 18 longer serves any function in the case. Therefore, in an Amended Complaint, as in 19 an original Complaint, each claim and the involvement of each Defendant must be 20 sufficiently alleged. 21 recommended dismissal of this case. 22 IT IS SO ORDERED. 23 Failure to comply with this order will result in the DATED: June 22, 2017. 24 25 26 27 28 ______________________________________ NANCY J. KOPPE United States Magistrate Judge

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