Belssner v. Bank of America et al

Filing 4

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. The clerk shall file the complaint. The Complaint is DISMISSED with leave to amend. Plaintiff will have until August 31, 2017, to file an Amended Complaint, if the noted deficiencies can be corrected. Signed by Magistrate Judge Nancy J. Koppe on 8/1/17. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 CHARLES N. BELSSNER, 15 ) ) ) ) ) ) ) ) ) ) 16 Pursuant to 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 17 authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also 18 submitted a complaint. Docket No. 1-1. 19 I. 11 Plaintiff(s), 12 v. 13 BANK OF AMERICA, et al., 14 Defendant(s). Case No. 2:17-cv-01666-APG-NJK ORDER In Forma Pauperis Application 20 Plaintiff has submitted the affidavit required by § 1915(a). Docket No. 1. Although a close 21 question, the Court concludes that Plaintiff has shown an inability to prepay fees and costs or give 22 security for them. Accordingly, the request to proceed in forma pauperis will be granted pursuant 23 to 28 U.S.C. § 1915(a). The Clerk’s Office is further INSTRUCTED to file the complaint on the 24 docket. The Court will now review Plaintiff’s complaint. 25 II. Screening Complaint 26 Upon granting an application to proceed in forma pauperis, courts additionally screen the 27 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action 28 is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 1 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When 2 a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 3 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 4 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 5 1103, 1106 (9th Cir. 1995). 6 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 7 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 8 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th 9 Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing 10 that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 11 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more 12 than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft 13 v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court 14 must accept as true all well-pled factual allegations contained in the complaint, but the same 15 requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the 16 elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. 17 Secondly, where the claims in the complaint have not crossed the line from conceivable to plausible, 18 the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se complaint 19 are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 20 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required 21 after Twombly and Iqbal). 22 Here, the Court understands the basic gist of Plaintiff’s grievance appears to be that he 23 alleges he is disabled, that he spent 2 ½ years attempting to obtain a mortgage from Defendant Bank 24 of America, and that the mortgage application was ultimately denied as incomplete because 25 Defendant Bank of America asserted that it could not confirm a residential address for Plaintiff. See 26 Docket No. 1-1. At the same time, however, the complaint fails to set forth how these allegations 27 support a claim under the Americans with Disabilities Act, the Fair Credit Reporting Act, or any of 28 the other causes of action mentioned. See id. To comply with Rule 8, a complaint must set forth -2- 1 coherently who is being sued, for what relief, and on what theory, with enough detail to guide 2 discovery. See McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1995).1 3 Quite simply, the complaint fails to identify how the factual allegations made state a claim 4 for any particular cause of action, and therefore fails to satisfy Rule 8. The Court will, however, 5 allow Plaintiff an opportunity to amend the complaint so that he can comply with Rule 8. 6 III. Conclusion 7 Accordingly, IT IS ORDERED that: 8 1. 9 10 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 11 prepayment of any additional fees or costs or the giving of a security therefor. This 12 Order granting leave to proceed in forma pauperis shall not extend to the issuance 13 and/or service of subpoenas at government expense. 14 3. The Complaint is DISMISSED with leave to amend. Plaintiff will have until 15 August 31, 2017, to file an Amended Complaint, if the noted deficiencies can be 16 corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed that the 17 Court cannot refer to a prior pleading (i.e., the original Complaint) in order to make 18 the Amended Complaint complete. This is because, as a general rule, an Amended 19 Complaint supersedes the original Complaint. Local Rule 15-1(a) requires that an 20 Amended Complaint be complete in itself without reference to any prior pleading. 21 Once a plaintiff files an Amended Complaint, the original Complaint no longer 22 serves any function in the case. Therefore, in an Amended Complaint, as in an 23 original Complaint, each claim and the involvement of each Defendant must be 24 sufficiently alleged. 25 26 27 28 1 Although the Court construes complaints drafted by pro se litigants liberally, they still must comply with the basic requirements of Rule 8. See, e.g., Montgomery v. Las Vegas Metropolitan Police Dept., 2014 WL 3724213, at *3 n.3 (D. Nev. July 28, 2014). -3- 1 2 3 4. Failure to comply with this order will result in the recommended dismissal of this case. Dated: August 1, 2017 4 5 6 NANCY J. KOPPE United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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