Thuna v. Clark County Clerk of Courts

Filing 8

ORDER Granting 6 Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that the Clerk of the Court must file 1 -1 Plaintiff's complaint. See Order for details/deadlines. Signed by Magistrate Judge Carl W. Hoffman on 3/28/2018. (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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BARREN MAR THUNA,

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Plaintiff,
ORDER

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Case No. 2:17-cv-02475-APG-CWH

v.
CLARK COUNTY CLERK OF COURTS, et
al.,
Defendants.

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Presently before the court is incarcerated pro se Plaintiff Barren Mar Thuna’s application

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to proceed in forma pauperis (ECF No. 6), filed on November 8, 2017.

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I.

IN FORMA PAUPERIS APPLICATION
Plaintiff has submitted the declaration required by 28 U.S.C. § 1915(a) showing an

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inability to prepay fees and costs or give security for them. Accordingly, Plaintiff’s request to

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proceed in forma pauperis will be granted.

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II.

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SCREENING COMPLAINT
Upon granting a request to proceed in forma pauperis, a court must screen the complaint

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under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable

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claims and dismiss claims that are frivolous, malicious, file to state a claim on which relief may

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be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard

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for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter,

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668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain

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

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

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

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in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908

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(9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

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

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

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

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

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

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544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.

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Further, a Court may dismiss a claim as factually frivolous if its allegations are “clearly baseless,

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a category encompassing allegations that are fanciful, fantastic, and delusional.” Denton v.

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Hernandez, 504 U.S. 25, 32–33 (1992) (internal citations and punctuation omitted). Unless it is

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

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

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

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Further, the Court must take special note of claims brought under 42 U.S.C. § 1983 that

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concern conduct related to a plaintiff’s criminal conviction. “[I]f a criminal conviction arising out

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of the same facts [as a § 1983 claim] stands and is fundamentally inconsistent with the unlawful

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behavior for which section 1983 damages are sought, the 1983 action must be dismissed.”

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Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (citing Heck v. Humphrey, 512 U.S. 477,

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114 (1994)). The Heck rule bars a plaintiff from bringing a suit under § 1983 if a judgment in

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favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. See

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Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007).

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Here, Plaintiff’s initiating documents include a document labeled as a complaint (ECF No.

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1-1), but the text of this document contains only a “Notice of intent to file 1983 Civil Rights

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Complaint.” It appears that Plaintiff intends to file suit against the Clark County Clerk of Courts.

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However, the complaint is only a single page and contains no allegations of any particular dates,

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and the only fact asserted is that “all violations occurred in Clark County, Nevada.” Plaintiff’s

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Page 2 of 4

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complaint does not allege any substantive facts to support her cause of action. The Court will

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therefore dismiss Plaintiff’s complaint with leave to amend.
If Plaintiff chooses to file an amended complaint, the document must be titled “Amended

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Complaint.” The amended complaint must contain a short and plain statement describing the

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underlying case, the defendant’s involvement in the case, and the approximate dates of its

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involvement. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of Civil Procedure adopt a

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flexible pleading standard, Plaintiff still must give a defendant fair notice of the Plaintiff’s claims

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against it and Plaintiff’s entitlement to relief.

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The amended complaint also must contain a short and plain statement of the grounds for

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the court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Regarding jurisdiction, Plaintiff is advised

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that “[f]ederal district courts are courts of limited jurisdiction, possessing only that power

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authorized by Constitution and statute.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d

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1024, 1027 (9th Cir. 2011) (quotation omitted). Federal district courts “have original jurisdiction

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of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28

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U.S.C. § 1331. Federal district courts have original jurisdiction over civil actions in diversity

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cases “where the matter in controversy exceeds the sum or value of $75,000” and where the

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matter is between “citizens of different States.” 28 U.S.C. § 1332(a). “Section 1332 requires

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complete diversity of citizenship; each of the plaintiffs must be a citizen of a different state than

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each of the defendants.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001).

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Additionally, Plaintiff is advised that if she files an amended complaint, the original

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complaint (ECF No. 1-1) no longer serves any function in this case. As such, the amended

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complaint 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 Plaintiff’s

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amended complaint complete.

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Page 3 of 4

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IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In

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Forma Pauperis (ECF No. 6) is GRANTED. Plaintiff will not be required to pay the filing fee in

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this action. Plaintiff is permitted to maintain this action to conclusion without the necessity of

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prepayment of any additional fees or costs or the giving of a security for fees or costs. This order

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granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at

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government expense.

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IT IS FURTHER ORDERED that the Clerk of the Court must file Plaintiff’s complaint
(ECF No. 1-1).
IT IS FURTHER ORDERED that the complaint (ECF No. 1-1) is DISMISSED without
prejudice for failure to state a claim upon which relief can be granted, with leave to amend.
IT IS FURTHER ORDERED that Plaintiff shall have thirty days from the date of this

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order to file an amended complaint. Failure to file an amended complaint will result in a

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recommendation that this case be dismissed.

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DATED: March 28, 2018

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C.W. HOFFMAN, JR.
UNITED STATES MAGISTRATE JUDGE

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