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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GRACE ALBANESE,

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Plaintiff(s),
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vs.
HOMELAND SECURITY,

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Defendant(s).

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Case No. 2:17-cv-01663-JCM-NJK
ORDER

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Plaintiff Grace Albanese, proceeding in this action pro se, has requested authority pursuant

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to 28 U.S.C. § 1915 to proceed in forma pauperis, and submitted a complaint on June 14, 2017.

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Docket Nos. 1, 1-1.

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I.

In Forma Pauperis Application

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Plaintiff has submitted the affidavit required by § 1915 showing an inability to prepay fees

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

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will be granted pursuant to 28 U.S.C. § 1915(a). The Court will now review Plaintiff’s Complaint.

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II.

Screening the Complaint

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Upon granting a request to proceed in forma pauperis, the Court additionally screens the

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complaint pursuant to § 1915. Federal courts are given the authority to dismiss a case if the action

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is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When

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the Court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the

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complaint with directions as to curing its deficiencies, unless it is clear from the face of the

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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d

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1103, 1106 (9th Cir. 1995).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint

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for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6)1 is

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essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th

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Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing

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that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more

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than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

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The court must accept as true all well-pled factual allegations contained in the complaint, but the

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same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the

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elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678.

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Additionally, where the claims in the complaint have not crossed the line from conceivable to

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plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se

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complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v.

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Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings

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is required after Twombly and Iqbal).

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In this instance, Plaintiff has submitted a one-page complaint alleging that she is being

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stalked and that “Homeland Security” refuses to get involved. See Docket No. 1-1 at 2. Plaintiff

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vaguely refers to “obstruction of justice,” due process, equal protection, and 42 U.S.C. § 1983,

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without explaining how § 1983 applies to this action, or how any constitutional provisions have

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allegedly been violated. Id. at 1-2. Further, she fails to set forth in sufficient detail the facts

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underlying this action. Id. at 2. Thus, Plaintiff’s complaint fails to satisfy Rule 8’s basic

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requirements and therefore fails to state a claim upon which relief can be granted.

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Unless otherwise stated, all references to “Rules” denote the Federal Rules of Civil
Procedure.

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III.

Conclusion

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Accordingly, IT IS ORDERED that:

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1.

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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).

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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 therefor. This

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Order granting leave to proceed in forma pauperis shall not extend to the issuance

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and/or service of subpoenas at government expense.

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The Clerk of the Court shall file the Complaint.

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The Complaint is DISMISSED with leave to amend. Plaintiff will have until July

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20, 2017, to file an Amended Complaint, if she believes she can correct the noted

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deficiencies. If Plaintiff chooses to amend the complaint, Plaintiff is informed that

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the Court cannot refer to a prior pleading (i.e., her original Complaint) in order to

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make the Amended Complaint complete. This is because, as a general rule, an

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Amended Complaint supersedes the original Complaint. Local Rule 15-1(a) requires

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that an Amended Complaint be complete in itself without reference to any prior

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pleading. Once a plaintiff files an Amended Complaint, the original Complaint no

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longer serves any function in the case. Therefore, in an Amended Complaint, as in

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an original Complaint, each claim and the involvement of each Defendant must be

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sufficiently alleged.

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recommended dismissal of this case.

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IT IS SO ORDERED.

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Failure to comply with this order will result in the

DATED: June 22, 2017.

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge