Lyons et al v. United States of America et al

Filing 4

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis. Amended Complaint deadline: 11/13/2017. The Complaint is dismissed with leave to amend. Signed by Magistrate Judge Nancy J. Koppe on 10/10/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 VICTOR LYONS, et al., 15 ) ) ) ) ) ) ) ) ) ) 16 Pursuant to 28 U.S.C. § 1915 Plaintiffs Victor Lyons and Roger Scott are proceeding in this 17 action pro se and have requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma 18 pauperis. Docket Nos. 1, 1-1. Plaintiffs also submitted a complaint. Docket No. 1-2. 19 I. 11 Plaintiffs, 12 v. 13 UNITED STATES OF AMERICA, et al., 14 Defendants. Case No. 2:17-cv-02262-JAD-NJK ORDER In Forma Pauperis Application 20 Plaintiffs have submitted the affidavit required by § 1915(a). Docket Nos. 1 (Plaintiff Roger 21 Scott)1, 1-1 (Plaintiff Victor Lyons). The Court concludes that Plaintiffs have shown an inability to 22 prepay fees and costs or give security for them. Accordingly, the requests to proceed in forma 23 pauperis will be granted pursuant to 28 U.S.C. § 1915(a). 24 INSTRUCTED to file the complaint on the docket, with all medical records of both Plaintiffs in the 25 exhibits to the complaint filed UNDER SEAL. The Court will now review Plaintiffs’ complaint. The Clerk’s Office is further 26 27 28 1 Plaintiff submits his application to proceed in forma pauperis as a plaintiff under Rule 23(a). Docket No. 1 at 1. The Court denies the application under Rule 23(a); however, the Court grants in forma pauperis status to Plaintiff as an individual pro se plaintiff. 1 II. Screening Complaint 2 Upon granting an application to proceed in forma pauperis, courts additionally screen the 3 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action 4 is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When 6 a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 7 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 8 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 9 1103, 1106 (9th Cir. 1995). 10 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 11 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 12 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th 13 Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing 14 that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 15 544, 555 (2007). Although Fed.R.Civ.Pro. 8 does not require detailed factual allegations, it demands 16 “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 18 The court must accept as true all well-pled factual allegations contained in the complaint, but the 19 same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the 20 elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. 21 Secondly, where the claims in the complaint have not crossed the line from conceivable to plausible, 22 the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se complaint 23 are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 24 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required 25 after Twombly and Iqbal). Plaintiffs’ complaint suffers from numerous deficiencies. 26 A. Federal Court Jurisdiction 27 Federal courts are courts of limited jurisdiction and possess only that power authorized by 28 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is -2- 1 presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock 2 West, Inc. V. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). 3 As Plaintiff is the party who invokes the court’s jurisdiction, Plaintiff bears the burden of proving 4 that the case is properly in federal court. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 5 2001) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). 6 Plaintiffs fail to allege federal court jurisdiction, apart from bald statements about “federal 7 questions.” See Docket No. 1-2. Although Plaintiffs have named the United States as a defendant, 8 “[t]he United States, as sovereign, is immune from suit save as it consents to be sued ..., and the 9 terms of its consent to be sued in any court define that court's jurisdiction to entertain suit.” United 10 States v. Sherwood, 312 U.S. 584, 586 (1941). “Its consent to be sued must be ‘unequivocally 11 expressed,’ and the terms of such consent define the court's subject matter jurisdiction.” 12 White–Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir.2010)(quoting United States v. 13 Mitchell, 445 U.S. 535, 538 (1980)). 14 Plaintiffs have failed to demonstrate that the United States has waived its sovereign 15 immunity. The Court cannot determine, from the original complaint, whether the United States has 16 waived sovereign immunity and consented to suit. Accordingly, Plaintiffs have not borne their 17 burden of demonstrating that this Court has jurisdiction over the instant case. 18 B. Class Action 19 Plaintiffs attempt to file their complaint as a class action, with Plaintiffs representing the 20 class pro se. Docket No. 1-2. Plaintiffs cannot, however, proceed with a class action as pro se 21 litigants. See Langan v. United Services Auto. Assoc., 69 F. Supp. 3d 965, 988-89 (N.D. Cal. 2014), 22 see also Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (collecting cases). Plaintiffs 23 seek to avoid that fate by arguing that they are entitled to appointment of counsel under Rule 23 of 24 the Federal Rules of Civil Procedure. See, e.g., Docket No. 1-2 at 5. Plaintiffs misunderstand that 25 rule, which provides that once the Court has determined that a case may proceed as a class action 26 then it also orders that one of the attorneys already appearing in the case as a representative of a 27 named plaintiff is appointed to also represent the entire class. See, e.g., Olmos v. Ryan, 2012 WL 28 1580555, at *3 (D. Ariz. May 4, 2012). Rule 23 does not mandate appointment of counsel for pro -3- 1 se litigants seeking to bring class actions. See, e.g., id.2 Hence, Plaintiffs are not entitled to 2 appointment of counsel, and they cannot bring their case as a class action. 3 C. 4 Here, the Court understands the basic gist of Plaintiffs’ grievance appears to be related to 5 their service in different branches of the United States military beginning, respectively, in the 1950s 6 and in the 1960s. See Docket No. 1-2. At the same time, however, the complaint fails to set forth 7 any claim or how the allegations in the complaint support any claim against any defendant. See id. 8 To comply with Rule 8, a complaint must set forth coherently who is being sued, for what relief, and 9 on what theory, with enough detail to guide discovery. See McHenry v. Renne, 84 F.3d 1172, 1178 10 Failure to State a Claim (9th Cir. 1995).3 11 Quite simply, the complaint fails to identify how the factual allegations made state a claim 12 for any particular cause of action, and therefore fails to satisfy Rule 8. The Court will, however, 13 allow Plaintiffs an opportunity to amend the complaint so that they can comply with Rule 8. 14 III. Conclusion 15 Accordingly, IT IS ORDERED that: 16 1. The requests by Plaintiffs Scott and Lyons to proceed in forma pauperis is 17 GRANTED. Plaintiffs shall not be required to pay the filing fee of four hundred 18 dollars ($400.00). 19 2. Plaintiffs are permitted to maintain this action to conclusion without the necessity of 20 prepayment of any additional fees or costs or the giving of a security therefor. This 21 Order granting leave to proceed in forma pauperis shall not extend to the issuance 22 and/or service of subpoenas at government expense. 23 2 24 25 26 27 28 Courts have discretion to appoint counsel for indigent civil litigants under “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances, however, are not present in this case. See, e.g., Masters v. Samuels, 2015 WL 5446007, at *3-4 (C.D. Cal. Sept. 16, 2016) (the desire to bring a class action does not create “exceptional circumstances,” and a pro se litigant’s class-action allegations are subject to dismissal as being brought without counsel). 3 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). -4- 1 3. The Complaint is DISMISSED with leave to amend. Plaintiffs will have until 2 November 13, 2017, to file an Amended Complaint, if the noted deficiencies can be 3 corrected. If Plaintiffs choose to amend the complaint, Plaintiffs are informed that 4 the Court cannot refer to a prior pleading (i.e., the original Complaint) in order to 5 make the Amended Complaint complete. This is because, as a general rule, an 6 Amended Complaint supersedes the original Complaint. Local Rule 15-1(a) requires 7 that an Amended Complaint be complete in itself without reference to any prior 8 pleading. Once a plaintiff files an Amended Complaint, the original Complaint no 9 longer serves any function in the case. Therefore, in an Amended Complaint, as in 10 an original Complaint, each claim and the involvement of each Defendant must be 11 sufficiently alleged. 12 4. Failure to comply with this order will result in the recommended dismissal of 13 this case. 14 Dated: October 10, 2017. 15 16 17 NANCY J. KOPPE United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 -5-

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