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 complaint 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)
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?