Vanderstrait v. State of Nevada et al

Filing 3

ORDER. IT IS HEREBY ORDERED that 1 Plaintiff's Application to Proceed in Forma Pauperis is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Complaint be dismissed without prejudice with leave to amend. Plaintiff shall have until 11/30/2018 to file an amended complaint correcting the noted deficiencies. Signed by Magistrate Judge George Foley, Jr on 10/31/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARTIN MICHAEL VANDERSTRAIT,

Case No. 2:17-cv-02160-JAD-GWF

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Plaintiff,

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STATE OF NEVADA, et al.,
Defendants.

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This matter is before the Court on Plaintiff’s Application to Proceed In Forma Pauperis

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ORDER

v.

(ECF No. 1), filed on August 11, 2017.

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BACKGROUND

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Plaintiff alleges that the State of Nevada, Clark County, the City of Las Vegas, and the

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City of Henderson have interfered with interstate commerce and transportation and violated

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Nevada Revised Statute § 197.200. He also alleges claims of fraud and conspiracy to commit

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fraud, forgery, breach of contract, and ineffective assistance of counsel.

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DISCUSSION
I.

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Application to Proceed in Forma Pauperis
Plaintiff filed this instant action and attached a financial affidavit to his application and

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complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff’s financial affidavit pursuant

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to 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result,

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Plaintiff's request to proceed in forma pauperis in federal court is granted.

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...

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...

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II.

Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which

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relief may be granted, or seeks monetary relief from a defendant/third party plaintiff who is

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immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be

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dismissed for failure to state a claim upon which relief may be granted “if it appears beyond a

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doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to

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relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be

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dismissed as frivolous if it is premised on a nonexistent legal interest or delusional factual

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scenario. Neitzke v. Williams, 490 U.S. 319, 327–28 (1989). Moreover, “a finding of factual

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frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly

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incredible, whether or not there are judicially noticeable facts available to contradict them.”

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Denton v. Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses a complaint under §

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1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing

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its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be

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cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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The Court shall liberally construe a complaint by a pro se litigant. Eldridge v. Block, 832

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F.2d 1132, 1137 (9th Cir. 2007). This is especially important for civil rights complaints. Ferdik

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v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, a liberal construction may not be

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used to supply an essential element of the claim absent from the complaint. Bruns v. Nat’l

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Credit Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982)).

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III.

Instant Complaint

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A.

Subject Matter Jurisdiction

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Federal district courts are courts of limited jurisdiction, deriving their power to hear cases

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from specific congressional grants of jurisdiction. United States v. Sumner, 226 F.3d 1005, 1009

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(9th Cir. 2000). Limited jurisdiction means that federal courts (1) possess only that power

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authorized by the Constitution or a specific federal statute and (2) do not have jurisdiction over a

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matter simply because the alleged wrong occurred in the same city, county, or state in which the

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court sits. See U.S. Const. art. III, § 2, cl. 1. Generally, subject matter jurisdiction may derive

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from diversity of the parties, which are “civil actions where the matter in controversy exceeds the

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sum or value of $75,000 ... and is between citizens of different States,” or from claims involving

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a federal question, which are “civil actions arising under the Constitution, laws, or treaties of the

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United States.” See 28 U.S.C. § 1331; 28 U.S.C. § 1332.

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Rule 8(a)(1) of the Federal Rules of Civil Procedure states that a “claim for relief must

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contain ... a short plain statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P.

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8(a)(1). The burden of proving jurisdiction rests on the party asserting jurisdiction. See McNutt

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v. Gen. Motors Acceptance Corp. 298 U.S. 178, 182–83 (1936). Plaintiff does not state the

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grounds for the Court’s jurisdiction in his complaint nor does the complaint contain allegations

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demonstrating that the Court has jurisdiction.

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B.

Failure to State a Claim

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

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complaint for failure to state a claim upon which relief can be granted. Review under Rule

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12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of

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America, 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a “short

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and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P.

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8(a)(2); Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not

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require detailed factual allegations, it demands “more than labels and conclusions” or a

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“formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937,

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1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true

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all well-pled factual allegations contained in the complaint, but the same requirement does not

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apply to legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the elements of a cause of

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action, supported only by conclusory allegations, do not suffice. Id. at 1949. Secondly, where

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

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complaint should be dismissed. Twombly, 550 U.S. at 570.

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Plaintiff’s allegations are inadequate. He provides very little to no factual description of

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the basis of his claims. He simply lists causes of actions without stating the factual nature of his

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claims. A plaintiff must set forth sufficient allegations of underlying facts to give fair notice and

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to enable the opposing party to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216 (9th

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Cir. 2011). Plaintiff further fails to allege that this Court has subject matter jurisdiction over his

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claims. The Court, therefore, dismisses his complaint with leave to amend. Plaintiff is advised

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that he must provide the court with a proper factual and legal basis for his claims in his amended

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complaint.
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Breach of Contract

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Plaintiff appears to bring a claim for breach of contract, which is a cause of action that

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occurs under state law. A federal court may hear state claims that are part of the “same case or

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controversy” as a claim arising under federal law. 28 U.S.C. § 1367(a). Section 1367(a) grants

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supplemental jurisdiction to the federal district court for “all other claims that are so related to

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claims” over which the federal district court has original jurisdiction “that they form part of the

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same case or controversy under Article III.” If Plaintiff does not intend to set forth any claims

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under federal law, subject matter jurisdiction may derive from diversity of the parties, which are

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“civil actions where the matter in controversy exceeds the sum or value of $75,000 ... and is

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between citizens of different States.”

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In order to state a claim for breach of contract under Nevada law, Plaintiff must allege “(1)

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the existence of a valid contract, (2) a breach by the defendant, and (3) damage as a result of the

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breach.”

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Richardson v. Jones, 1 Nev. 405 (Nev.1865)). Plaintiff fails to allege factual allegations sufficient

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to state a claim for breach of contract. He also fails to show that this Court has subject matter

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jurisdiction over this claim. The Court will, therefore, dismiss this claim with leave to amend to

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correct the noted deficiencies.

Saini v. Int'l Game Tech., 434 F.Supp.2d 913, 919–920 (D.Nev.2006) (quoting

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Fraud

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To state a claim for fraud a plaintiff must allege that (1) the defendant made a false

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representation, (2) the defendant knew or believed the representation to be false, (3) the defendant

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intended to induce plaintiff to rely on the misrepresentation, and (4) the plaintiff suffered damages

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as a result of his or her reliance on the misrepresentation. Shlesinger v. Bank of Am., N.A., 2012

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WL 2995698, at *6 (D. Nev. July 23, 2012) (citing Barmettler v. Reno Air, Inc., 956 P.2d 1382,

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1386 (Nev. 1998). Further, a plaintiff must allege fraud with particularity. Fed. R. Civ. P. 9(b).

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Here, Plaintiff fails to allege factual allegations sufficient to state a claim for fraud. He does not

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distinguish between any of the defendants or identify any fraudulent conduct.

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The Court,

therefore, dismisses this claim with leave to amend the correct noted deficiencies.
Plaintiff’s § 1983 Claim

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C.

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42 U.S.C. § 1983 creates a path for the private enforcement of substantive rights created

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by the Constitution and Federal Statutes. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To

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the extent that Plaintiff is seeking to state a claim under § 1983, a plaintiff “must allege the

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violation of a right secured by the Constitution and the laws of the United States, and must show

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that the alleged deprivation was committed by a person acting under color of law.” West v.

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Atkins, 487 U.S. 42, 48-49 (1988). A person acts under “color of law” if he “exercise[s] power

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possessed by virtue of state law and made possible only because the wrongdoer is clothed with

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the authority of state law.” West, 487 U.S. at 49.

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1.

Ineffective Assistance of Counsel

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The Sixth Amendment guarantees the right to effective assistance of counsel. Strickland

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v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The U.S. Supreme

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Court has concluded that public defenders do not act under color of state law because their conduct

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as legal advocates is controlled by professional standards independent of the administrative

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direction of a supervisor. Pattillo v. Lombardo, 2017 WL 3622778, at *4 (D. Nev. Aug. 23, 2017),

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report and recommendation adopted, 2018 WL 855563 (D. Nev. Feb. 13, 2018) (citing Polk

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County v. Dodson, 454 U.S. 312 (1981)). Further, when a plaintiff seeks damages on a § 1983

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claim that implicates the constitutionality of the plaintiff’s conviction or sentence, he must

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demonstrate that the conviction or sentence has been overturned. Heck v. Humphrey, 512 U.S.

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477, 480 (1994)). “A claim for damages bearing that relationship to a conviction or sentence that

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has not been ... invalidated is not cognizable under § 1983.” Id. at 487.

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Plaintiff does not provide the factual basis for his ineffective assistance of counsel claim.

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The Court is not aware as to whether Plaintiff was at any time a criminal defendant and represented

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by the Office of the Federal Public Defender or any other court appointed attorney. The Court

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does not have enough information to properly screen Plaintiff’s ineffective of counsel claim.

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However, it is not clear from the face of the complaint that the deficiencies could not be cured by

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amendment.
2.

State of Nevada

States are not persons for purposes of § 1983. See Arizonans for Official English v.

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Arizona, 520 U.S. 43, 69 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);

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Jackson v. Barnes, 749 F.3d 755, 764 (9th Cir. 2014), cert. denied, 135 S. Ct. 980 (2015).

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Therefore, § 1983 claims against states are legally frivolous. See Jackson v. Arizona, 885 F.2d

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639, 641 (9th Cir. 1989), superseded by statute on other grounds as stated in Lopez v. Smith, 203

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F.3d 1122, 1130 (9th Cir. 2000) (en banc). Plaintiff’s lack of factual allegations makes it

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difficult for the Court to discern if he is seeking a claim under § 1983 against the State of

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Nevada. The Court, however, recommends dismissal of Plaintiff’s claims against the State of

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Nevada to the extent he intends to set forth § 1983 claims against Defendant State of Nevada.

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3.

Municipal Liability

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A municipal liability claim under § 1983 proceeds only if a municipality causes a

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constitutional violation through a policy or custom. See Harper v. City of Los Angeles, 533 F.3d

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1010, 1024–25 (9th Cir.2008). Municipal entities may be held directly liable, but not on the basis

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of respondeat superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 91 (1978). In other words, a

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municipality cannot be held liable only because it employs a person who allegedly violated the

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constitution. Id. at 691. “A plaintiff seeking to impose liability on a municipality under § 1983

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[must] identify a municipal policy or custom that caused the plaintiff's injury.” Id. (citation and

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internal quotation marks omitted). A municipality can be held liable where “the action that is

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alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or

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decision officially adopted and promulgated by that body's officers,” or where the action is made

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“pursuant to governmental ‘custom’ even though such a custom has not received formal approval

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through the body's official decision making channels.” Id. at 690–91.Here, Plaintiff lists the City

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of Las Vegas and the City of Henderson as Defendants. However, he fails to allege the underlying

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facts to support a sufficient municipal liability claim. The Court, therefore, dismisses Plaintiff’s

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claims with leave to amend the noted deficiencies.

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If Plaintiff elects to proceed in this action by filing an amended complaint, he is informed

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that the court cannot refer to a prior pleading in order to make his amended complaint complete.

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Local Rule 15–1 requires that an amended complaint be complete in itself without reference to any

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prior pleading. This is because, as a general rule, an amended complaint supersedes the original

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complaint. See Valdez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011); see Loux v. Rhay,

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375 F.2d 55, 57 (9th Cir.1967). Once Plaintiff files an amended complaint, the original pleading

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no longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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Plaintiff is advised that litigation will not commence upon the filing of an amended complaint.

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Rather, the Court will need to conduct an additional screening of the amended complaint pursuant

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to 28 U.S.C. § 1915(e).

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deficiencies identified above, the Court will recommend that the complaint be dismissed with

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prejudice. Accordingly,

If Plaintiff fails to file an amended complaint or fails to cure the

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IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in Forma Pauperis is

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granted. Plaintiff shall not be required to pre-pay the full filing fee of four hundred dollars

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($400.00).

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IT IS FURTHER ORDERED that that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving of

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security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the

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issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that Plaintiff’s Complaint be dismissed without prejudice

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with leave to amend. Plaintiff shall have until November 30, 2018 to file an amended complaint

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correcting the noted deficiencies.

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Dated this 31st day of October, 2018.

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GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

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