Landrum Sr v. Tyson

Filing 5

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 November 6, 2017, to file an amended complaint, if he believes the noted deficiencies can be corrected. Signed by Magistrate Judge Nancy J. Koppe on 10/5/17. (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 IRON MIKE LANDRUM SR., 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. 1-1.1 19 I. 11 Plaintiff(s), 12 vs. 13 MICHAEL GERARD TYSON, 14 Defendant(s). Case No. 2:17-cv-01821-JCM-NJK ORDER In Forma Pauperis Application 20 Plaintiff has submitted the affidavit required by § 1915(a). Docket No. 1. The Court 21 concludes that Plaintiff has shown an inability to prepay fees and costs or give security for them. 22 Accordingly, the request to proceed in forma pauperis will be granted pursuant to 28 U.S.C. § 23 24 25 26 27 28 1 Plaintiff filed a complaint, Docket No. 1-1, and a motion for preliminary injunction. Docket No. 2. The Court construes the motion for preliminary injunction as an amended complaint. Local Rule 15-1(a) requires that an amended complaint be complete in itself without reference to any other document in order to make the amended complaint complete. Because Plaintiff is pro se and for the purposes of this order only, the Court will nonetheless reference the complaint filed in Docket No. 1-1 and the amended complaint filed in Docket No. 2. However, Plaintiff is advised that he must comply with the requirements for an amended complaint, as set forth in section III below. 1 1915(a). The Clerk’s Office is further INSTRUCTED to file the complaint on the docket. The 2 Court will now review Plaintiff’s complaint. 3 II. Screening Complaint 4 Upon granting an application to proceed in forma pauperis, courts additionally screen the 5 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action 6 is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When 8 a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 9 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 10 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 11 1103, 1106 (9th Cir. 1995). 12 Fed. R. Civ. P. 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 13 complaint for failure to state a claim upon which relief can be granted. Review under Fed. R. Civ. 14 P. 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 15 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the 16 grounds for the court’s jurisdiction, a short and plain statement of the claim showing that the pleader 17 is entitled to relief, and a demand for the relief sought. Fed. R. Civ. P. 8(a); Bell Atlantic Corp. v. 18 Twombly, 550 U.S. 544, 555 (2007). Although Fed. R. Civ. P. 8 does not require detailed factual 19 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements 20 of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 21 265, 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 22 complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. 23 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not 24 suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from 25 conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations 26 of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. 27 Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se 28 pleadings is required after Twombly and Iqbal). -2- 1 1. Grounds for the Court’s Jurisdiction 2 The Court has a duty to ensure that it has subject matter jurisdiction over the dispute before 3 it, an issue it may raise at any time during the proceedings. See, e.g., Fed. R. Civ. P. 12(h)(3). 4 Federal courts are courts of limited jurisdiction and possess only that power authorized by the 5 Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is presumed 6 to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. 7 v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). “The party 8 asserting federal jurisdiction bears the burden of proving that the case is properly in federal court.” 9 McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors 10 Acceptance Corp., 298 U.S. 178, 189 (1936)). 11 A. Federal Question Jurisdiction 12 Pursuant to 28 U.S.C. § 1331, federal courts have original jurisdiction over “all civil actions 13 arising under the Constitution, laws, or treaties of the United States.” Cases “arise under” federal 14 law either when federal law creates the cause of action or where the vindication of a right under state 15 law necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 16 277 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal question jurisdiction exists is based on the 17 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a federal 18 question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc. v. 19 Williams, 482 U.S. 386, 392 (1987). 20 In this case, Plaintiff states he is bringing a claim for trademark infringement but does not 21 identify a federal cause of action, or otherwise raise a federal question.2 Docket No. 2 at 2, 4 22 (identifying claims for trademark infringement). The pro se complaint form Plaintiff has submitted 23 requires a plaintiff to “list the specific federal statutes, federal treaties, and/or provisions of the 24 25 26 27 28 2 While the Court also has jurisdiction over civil cases in which there is diversity among the parties, Plaintiff does not claim diversity jurisdiction. See Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (“Jurisdiction founded on 28 U.S.C. § 1332 requires that the parties be in complete diversity and the amount in controversy exceed $75,000"). To establish diversity, the plaintiff must be a citizen of a different state than each defendant. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1095 (9th Cir. 2004). Plaintiff, a citizen of Nevada, alleges that Defendant is a citizen of Nevada. Docket No. 1-1 at 2. -3- 1 United States Constitution that are at issue” in the case to establish jurisdiction. Docket Nos. 1-1 2 at 3, 2 at 3. Plaintiff provides a state certificate of registration for his trademark that he alleges 3 Defendant violated, but fails to provide a basis for federal jurisdiction over the violation of a state 4 registered trademark. See Docket Nos. 1-1, 1-2 at 2.3 5 III. Conclusion 6 Accordingly, IT IS ORDERED that: 7 1. 8 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). 9 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 10 prepayment of any additional fees or costs or the giving of a security therefor. This 11 order granting leave to proceed in forma pauperis shall not extend to the issuance 12 and/or service of subpoenas at government expense. 13 3. The complaint is DISMISSED with leave to amend. Plaintiff will have until 14 November 6, 2017, to file an amended complaint, if he believes the noted 15 deficiencies can be corrected. If Plaintiff chooses to amend the complaint, Plaintiff 16 is informed that the Court cannot refer to a prior pleading (i.e., any prior complaint) 17 in order to make the amended complaint complete. This is because, as a general rule, 18 an amended complaint supersedes the original complaint. Local Rule 15-1(a) 19 requires that an amended complaint be complete in itself without reference to any 20 prior pleading. Once a plaintiff files an amended complaint, the original complaint 21 no longer serves any function in the case. Therefore, in an amended complaint, as in 22 an original complaint, each claim and the involvement of each defendant must be 23 sufficiently alleged. 24 // 25 // 26 3 27 28 Although Plaintiff included a statement of his claims, because Plaintiff has not provided grounds for the Court’s jurisdiction, the Court has not determined if the complaint states a claim that satisfies Fed. R. Civ. P. 8. Plaintiff must ensure that his amended complaint satisfies the standards for a statement of claims as set in section II of this order. -4- 1 2 4. Failure to comply with this order will result in the recommended dismissal of this case. 3 IT IS SO ORDERED. 4 DATED: October 5, 2017 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 -5-

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