Albanese v. Homeland Security

Filing 6

REPORT AND RECOMMENDATION. The undersigned RECOMMENDS that this case be DISMISSED. Objections to R&R due by 7/11/2017. Signed by Magistrate Judge Nancy J. Koppe on 6/27/17. (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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GRACE ALBANESE,

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Upon granting an application to proceed in forma pauperis, courts additionally screen the

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complaint pursuant to § 1915(e). 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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a 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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Plaintiff(s),
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v.
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HOMELAND SECURITY,
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Defendant(s).

Case No. 2:17-cv-01663-JCM-NJK
Report and Recommendation

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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) 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 Atlantic 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.” Ashcroft

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

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

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

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

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are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627

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

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after Twombly and Iqbal).

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On June 22, 2017, the Court screened Plaintiff’s complaint and found that her allegations

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failed to state a claim. Docket No. 3. The Court granted Plaintiff leave to amend. Id. Plaintiff has

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now filed an amended complaint that suffers from the same deficiencies outlined previously. Docket

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No. 4. Moreover, given Plaintiff’s inability to cure those deficiencies despite being given an

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opportunity to do so, further amendment would be futile.

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RECOMMENDS that this case be DISMISSED.

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For these reasons, the undersigned

DATED: June 27, 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

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in writing and filed with the Clerk of the Court within fourteen (14) days. 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). This circuit has also

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held that (1) failure to file objections within the specified time and (2) failure to properly address and

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brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal

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factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.

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