Echols v. Kindle

Filing 5

ORDER. IT IS ORDERED that the Clerk of Court must detach and file the complaint (ECF No. 1 -1) and the amended complaint (ECF No. 4 -1). IT IS FURTHER ORDERED that the complaint (ECF No. 1 -1) is DISMISSED with leave to amend as stated in this order. IT IS FURTHER ORDERED that the amended complaint (ECF No. 4 -1) is DISMISSED with leave to amend as stated in this order. IT IS FURTHER ORDERED that if Plaintiff chooses to file a Second Amended Complaint, it must be filed within 30 days from the date of this order. Failure to comply with this order will result in a recommendation that this case be dismissed. Signed by Magistrate Judge Brenda Weksler on 2/16/2021. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:19-cv-01682-RFB-BNW Document 5 Filed 02/16/21 Page 1 of 4

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Amber Echols,

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Case No. 2:19-cv-01682-RFB-BNW
Plaintiff,

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ORDER
v.

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Elaine Kindle,

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Defendant.

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Plaintiff Amber Echols filed a complaint at ECF No. 1-1. She also filed an amended

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complaint. ECF No. 4-1.
Plaintiff also filed an application to proceed in forma pauperis (IFP application). ECF No.

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1. Her IFP application and complaint are now before the court for review under 28 U.S.C. §

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1915.1
Plaintiff submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to

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prepay fees and costs or give security for them. Accordingly, the Court will grant Plaintiff’s IFP

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application (ECF No. 1).
Factual and Procedural Background

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Plaintiff Amber Echols filed a complaint in which she alleges that Elaine Kindle, who was

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representing her in an adoption case, failed to include terms for visitation. ECF No. 1-1. She also

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filed an amended complaint, in which she explains Ms. Kindle, who works for an adoption

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agency (Adoptions First), did not secure Plaintiff’s right to see her son at picnics that the agency

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This court was assigned to this case on February 3, 2021. It appears that the case was previously assigned to
Visiting Judge Whaley in error.

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supposedly holds where the adopting and the biological families of children get together. She

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does not seek to reinstate parental rights. Instead, she wishes to see her biological son at one of

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these picnics.

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Legal Standard
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, fail 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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Unless it is clear that the complaint’s deficiencies could not be cured through amendment, a pro

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se plaintiff should be given leave to amend the complaint with notice regarding the complaint’s

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

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Analysis

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Even liberally construing the complaint, it is unclear to the court whether Plaintiff is

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alleging a breach of contract or some other claim. This is crucial to determining whether this
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court has jurisdiction over this matter. The court, therefore, will dismiss the complaint without

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prejudice for Plaintiff to file an amended complaint to clarify this matter.
Federal courts are courts of limited jurisdiction. Generally, they can only hear claims

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involving federal questions (28 U.S.C. § 1331) or in which diversity jurisdiction exists (28 U.S.C.

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§ 1332). For diversity jurisdiction, the civil action must involve citizens of different states and the

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relief sought must exceed $75,000. Here, while the claim involves citizens of different states, the

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relief sought does not exceed $75,000. Thus, if Plaintiff is pursuing a breach of contract claim,

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state court may be the proper forum to pursue this claim.
Alternatively, if Plaintiff is alleging a different claim, she must explain what that claim is

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so that the court can evaluate, among other things, whether it has jurisdiction over this case.
Plaintiff is advised that if she chooses to file a Second Amended Complaint, the original

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complaint (ECF No. 1-1) and the Amended Complaint (ECF No. 4-1) no longer serve any

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function in this case. As such, if Plaintiff files a Second Amended Complaint, each claim and the

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involvement of each defendant must be alleged sufficiently. The court cannot refer to a prior

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pleading or to other documents to make Plaintiff’s Second Amended Complaint complete. The

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Second Amended Complaint must be complete in and of itself without reference to prior

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pleadings or to other documents.

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If Plaintiff chooses to file a Second Amended Complaint curing the deficiencies outlined

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in this order, Plaintiff must do so within 30 days from the date of this order. If Plaintiff does not

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file a Second Amended Complaint, the court will recommend that this case be dismissed without

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prejudice.

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III.

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CONCLUSION
IT IS THEREFORE ORDERED that the Clerk of Court must detach and file the

complaint (ECF No. 1-1) and the amended complaint (ECF No. 4-1).
IT IS FURTHER ORDERED that the complaint (ECF No. 1-1) is DISMISSED with
leave to amend as stated in this order.
IT IS FURTHER ORDERED that the amended complaint (ECF No. 4-1) is
DISMISSED with leave to amend as stated in this order.
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IT IS FURTHER ORDERED that if Plaintiff chooses to file a Second Amended

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Complaint, it must be filed within 30 days from the date of this order. Failure to comply with this

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order will result in a recommendation that this case be dismissed

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DATED: February 16, 2021

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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