Turner v. Clark County Detention Center et al

Filing 34

SCREENING ORDER. Plaintiff's Amended Complaint is DISMISSED without prejudice for failure to state a claim upon which relief can be granted with leave to amend. If Plaintiff chooses to file a second amended complaint he must do so by 4/13/2018 . All other pending 6 , 9 , 15 , 17 , 21 , 22 , 26 , 28 , and 31 Motions are DENIED without prejudice. Signed by Magistrate Judge Carl W. Hoffman on 3/14/2018. (Copies have been distributed pursuant to the NEF - mailed Plaintiff 1983 Complaint instructions/form and 1 Petition for Removal - SLD)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOHN TURNER,

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Plaintiff,
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v.
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POLO TOWERS MASTER OWNERS
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ASSOCIATION, INC., et al.,
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Defendants.
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____________________________________)

Case No. 2:17-cv-02042-APG-CWH
SCREENING ORDER

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This matter is before the court on the screening of Nevada state-prison inmate John

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Turner’s amended complaint (ECF No. 1, Ex. A) under 28 U.S.C. § 1915A.

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I.

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BACKGROUND
Turner filed his amended complaint in state court on June 13, 2017. (Notice of Removal

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(ECF No. 1), Exs. A-B [“Am. Compl.”].) The handwritten amended complaint is on what appears

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to be the state court’s form for civil rights complaints under 42 U.S.C. § 1983. (Id.) Turner lists

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Polo Towers Las Vegas, LVMPD Joe Lombardo, LVMPD Officer #5781, and Clark County as

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defendants. (Id. at 7-8.) Although the handwritten portions of the amended complaint are mostly

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illegible, it appears Turner alleges civil rights claims related to an incident resulting in his arrest at

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the Polo Towers resort hotel. (Id. at 9-10.) Defendant Polo Towers Master Owners Association,

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Inc. removed the case to this court on July 26, 2017. (Notice of Removal (ECF No. 1).) Based on

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the removal statement and what the court deciphered from the amended complaint, it appears at this

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time that removal to federal court was proper. The court now screens Turner’s amended complaint

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under 28 U.S.C. § 1915A.

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II.

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ANALYSIS
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

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that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),

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(2).

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Dismissal for failure to state a claim under § 1915A incorporates the standard for failure to

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state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Nordstrom v. Ryan, 762

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F.3d 903, 908 (9th Cir. 2014). To survive § 1915A review, a complaint must “contain sufficient

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factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court liberally construes pro se civil rights

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complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no

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set of facts in support of his claim which would entitle him to relief.” Id. (quoting Iqbal, 556 U.S.

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at 678).

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In considering whether the complaint is sufficient to state a claim, all allegations of material

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fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit

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P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although

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the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must

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provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is

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clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should

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be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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When evaluating a complaint under Rule 12(b)(6), a court also reviews compliance with

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Rule 8. See Twombly, 550 U.S. at 555-63. Illegible allegations do not satisfy Rule 8(a), which

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requires a complaint to contain a “short” and “plain” statement of the claim. See, e.g., Shuster v.

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Oppelman, 962 F. Supp. 394, 396 (S.D.N.Y. 1997) (stating that a partially illegible pro se
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complaint does not comply with Rule 8); Knutson v. Lucky Store, Inc., No. CIV S-07-0981-LKK-

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EFB-P, 2008 WL 4167076, at *1 (E.D. Cal. Sept. 5, 2008) (dismissing a pro se complaint that was

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mostly illegible and did not comply with Rule 8).

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Here, even liberally construing the amended complaint in Turner’s favor, it fails to state a

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claim upon which relief can be granted. Turner’s handwriting is mostly illegible, making it

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impossible for the court decipher all of his allegations. To the extent the amended complaint is

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legible, Turner appears to seek damages related to his arrest following an incident at the Polo

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Towers. But given the extreme difficulty in reading Turner’s handwriting, the court is unable to

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determine exactly what claims Turner is attempting to allege against which defendants and cannot

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evaluate whether Turner states claims for relief. The court therefore will dismiss the amended

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complaint without prejudice for Turner to file a second amended complaint.

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If Turner chooses to file a second amended complaint, it must be clearly printed or typed.

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To the extent Turner is attempting to bring a claim under 42 U.S.C. § 1983, Turner must allege

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facts indicating that: (1) a right secured by the Constitution or laws of the United States was

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violated, and (2) the alleged violation was committed by a person acting under color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988). Turner must ascribe particular conduct to particular

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defendants. All defendants must be identified in the caption of the pleading and all defendants

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must be named in the section of the second amended complaint designated for that purpose.

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Although the Federal Rules of Civil Procedure adopt a flexible pleading standard, Turner still must

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give the defendants fair notice of his claims against them and of his entitlement to relief.

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Furthermore, Turner is advised that if he files a second amended complaint, the amended

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complaint no longer serves any function in this case. As such, if Turner files a second amended

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complaint, it must be complete in and of itself without reference to prior pleadings or other

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documents. The court cannot refer to a prior pleading or other documents to make Turner’s second

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amended complaint complete.

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Finally, the court will deny without prejudice all other pending motions in the case. The

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court cannot determine its jurisdiction in this matter or evaluate these motions until it determines

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which claims and parties are at issue in this case.
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III.

CONCLUSION
IT IS THEREFORE ORDERED that Turner’s amended complaint (ECF No. 1, Exs. A-B)

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is DISMISSED without prejudice for failure to state a claim upon which relief can be granted, with

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leave to amend. If Turner chooses to file a second amended complaint, he must do so by April 13,

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2018. Failure to comply with this order will result in a report and recommendation to the assigned

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United States district judge that this case be dismissed.

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IT IS FURTHER ORDERED that the Clerk of Court must send to Turner the approved

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form for filing a § 1983 complaint, instructions for the same, and a copy of the petition for removal

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(ECF No. 1), which includes a copy of Turner’s amended complaint for his reference.

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IT IS FURTHER ORDERED that all other pending motions (ECF Nos. 6, 9, 15, 17, 21, 22,
26, 28, 31) are DENIED without prejudice.

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DATED: March 14, 2018

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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