Bailey v. Nevada Parole & Probation et al

Filing 3

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that the Clerk of Court must detach and separately file Plaintiffs complaint (ECF No. 4 ). IT IS FURTHER ORDERED that Plaintiffs complain t is dismissed without prejudice. IT IS FURTHER ORDERED that if Plaintiff wishes to file an amended complaint, he must do so by 12/21/2022. Failure to comply with this order will result in a recommendation that this case be dismissed. Signed by Magistrate Judge Brenda Weksler on 11/21/2022. (Copies have been distributed pursuant to the NEF - TRW)

Download PDF
Case 2:22-cv-01822-GMN-BNW Document 3 Filed 11/21/22 Page 1 of 3 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 Melvin Jr. Bailey, 5 Case No. 2:22-cv-01822-GMN-BNW Plaintiff, 6 v. 7 Nevada Parole & Probation, et al., 8 Defendants. ORDER 9 Plaintiff Melvin Jr. Bailey brings this lawsuit and moves to proceed in forma pauperis 10 11 (IFP). See ECF No. 1. Plaintiff submitted the affidavit required by 28 U.S.C. § 1915(a) showing 12 an inability to prepay fees or costs or give security for them. Accordingly, the Court will grant his 13 request to proceed in forma pauperis. The Court now screens Plaintiff’s complaint (ECF No. 1-1). 14 15 I. Analysis 16 A. Screening standard 17 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 18 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 19 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 20 granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 21 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 22 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 23 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 24 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 25 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). The court 26 liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that 27 the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 28 Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Case 2:22-cv-01822-GMN-BNW Document 3 Filed 11/21/22 Page 2 of 3 1 In considering whether the complaint is sufficient to state a claim, all allegations of 2 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 3 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 4 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 5 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 6 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 7 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 8 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 9 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 10 B. Screening the Complaint 11 Plaintiff’s complaint contains very few factual allegations. See ECF No. 1-1. He alleges 12 that he was denied the opportunity to provide an explanation at “the hearing” and two officers 13 “both continue to ignore a perfectly valid constitutional defense.” See id. at 4. As a result, 14 Plaintiff alleges that he has been denied “the civil right to enforce my civil right to personal 15 liberty.” Id. at 6. Plaintiff asks the Court to determine if the “defendants’ authority stems from 16 valid criminal proceedings . . . .” Id. Even liberally construing Plaintiff’s complaint, it does not 17 state sufficient factual allegations about the underlying dispute and the defendants’ role in the 18 matter to state a claim. 19 If Plaintiff chooses to file an amended complaint, the document must be titled “Amended 20 Complaint.” The amended complaint must contain a short and plain statement of the grounds for 21 the Court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Additionally, the amended complaint must 22 contain a short and plain statement describing the underlying case and the defendants’ 23 involvement in the case. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of Civil 24 Procedure adopt a flexible pleading standard, Plaintiff still must give each defendant fair notice of 25 his claims against it and of Plaintiff’s entitlement to relief. 26 Additionally, Plaintiff is advised that if he files an amended complaint, the original 27 complaint (ECF No. 1-1) no longer serves any function in this case. As such, the amended 28 complaint must be complete in and of itself without reference to prior pleadings or other Page 2 of 3 Case 2:22-cv-01822-GMN-BNW Document 3 Filed 11/21/22 Page 3 of 3 1 documents. The Court cannot refer to a prior pleading or other documents to make Plaintiff’s 2 amended complaint complete. 3 II. 4 5 6 7 CONCLUSION IT IS THEREFORE ORDERED that Plaintiff Melvin Jr. Bailey’s application to proceed in forma pauperis (ECF No. 1) is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court must detach and separately file Plaintiff’s complaint (ECF No. 1-1). 8 IT IS FURTHER ORDERED that Plaintiff’s complaint is dismissed without prejudice. 9 IT IS FURTHER ORDERED that if Plaintiff wishes to file an amended complaint, he 10 must do so by December 21, 2022. Failure to comply with this order will result in a 11 recommendation that this case be dismissed. 12 13 14 15 DATED: November 21, 2022 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3 of 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?