Kozlowski et al v. State of Nevada et al

Filing 4

ORDER - # 1 IFP Application is GRANTED. Clerk shall FILE the # 1 -1 Complaint, however the complaint is DISMISSED WITHOUT PREJUDICE. Plaintiffs have 30 days from the date of this Order to file an amended complaint, denoted as "Amended Complaint" with case number above. Signed by Magistrate Judge William G. Cobb on 5/14/2014. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STEVEN KOZLOWSKI and
MICHELLE KOZLOWSKI,
Plaintiffs,
v.

3:14-cv-00218-MMD-WGC
ORDER

STATE OF NEVADA, et. al.,
Defendants.
Before the court is Plaintiffs' application to proceed in forma
pauperis (Doc. # 1)1 and pro se complaint (Doc. # 1-1).
I. APPLICATION TO PROCEED IN FORMA PAUPERIS
A person may be granted permission to proceed in forma
pauperis if the person "submits an affidavit that includes a
statement of all assets such [person] possesses [and] that the
person is unable to pay such fees or give security therefor. Such
affidavit shall state the nature of the action, defense or appeal and
affiant's belief that the person is entitled to redress." 28 U.S.C.
§ 1915; Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en

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Refers to court's docket number. The court acknowledges
Plaintiffs' request that documents related to this case be in Arial
16 point font and double-spaced as a result of Mr. Kozolowski's
impaired vision. With the exception of the single-spacing of this
footnote, this document comports with that request.
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banc) (stating that this provision applies to all actions filed in
forma pauperis, not just prisoner actions).
In addition, the Local Rules of Practice for the District of
Nevada provide: "Any person, who is unable to prepay the fees in
a civil case, may apply to the Court for authority to proceed in
forma pauperis. The application shall be made on the form
provided by the Court and shall include a financial affidavit
disclosing the applicant's income, assets, expenses, and
liabilities." LSR 1-1.
"'[T]he supporting affidavits [must] state the facts as to [the]
affiant's poverty with some particularity, definiteness and
certainty.'" U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)
(quoting Jefferson v. United States, 277 F.2d 823, 725 (9th Cir.
1960)). A litigant need not "be absolutely destitute to enjoy the
benefits of the statute." Adkins v. E.I. Du Pont De Nemours & Co.,
335 U.S. 331, 339 (1948).
Plaintiffs indicate that their monthly income is $1,998, which
comes in the form of Social Security Disability Insurance (SSDI)
payments. (Doc. # 1 at 1.) Their monthly expenses roughly equal
their monthly income. (Id. at 2.) It appears they cannot pay the
filing fee; therefore, the application to proceed in forma pauperis
is granted.
II. SCREENING
28 U.S.C. § 1915 provides: "the court shall dismiss the case
at any time if the court determines that...the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim upon which relief
may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
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This provision applies to all actions filed in forma pauperis,
whether or not the plaintiff is incarcerated. See Lopez v. Smith,
203 F.3d 1122, 1129 (9th Cir. 2000) (en banc); see also Calhoun
v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).
Dismissal of a complaint for failure to state a claim upon
which relief may be granted is provided for in Federal Rule of Civil
Procedure 12(b)(6), and this court applies the same standard
under Section 1915(e)(2)(B) when reviewing the adequacy of the
complaint or amended complaint. See Resnick v. Hayes, 213
F.3d 443, 447 (9th Cir. 2000) (citation omitted). Review under
12(b)(6) is essentially a ruling on a question of law. See Chappel
v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000).
In reviewing the complaint under this standard, the court
must accept as true the allegations of the complaint, Hosp. Bldg.
Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976), construe
the pleadings in the light most favorable to plaintiff, and resolve all
doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411,
421 (1969). Allegations in pro se complaints are held to less
stringent standards than formal pleadings drafted by lawyers, and
must be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9
(1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per
curiam); Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011).
A complaint must contain more than a "formulaic recitation of
the elements of a cause of action," it must contain factual
allegations sufficient to "raise a right to relief above the
speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). "The pleading must contain something more...than...a
statement of facts that merely creates a suspicion [of] a legally
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cognizable right of action." Id. (quoting 5 C. Wright & A. Miller,
Federal Practice and Procedure § 1216, at 235-36 (3d ed.
2004)). At a minimum, a plaintiff should state "enough facts to
state a claim to relief that is plausible on its face." Id. at 570; see
also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A dismissal should not be without leave to amend unless it is
clear from the face of the complaint that the action is frivolous and
could not be amended to state a federal claim, or the district court
lacks subject matter jurisdiction over the action. See Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (dismissed as
frivolous); O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).
In their complaint, Plaintiffs name thirty four defendants who
allegedly denied their rights under the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101, et. seq. (Doc. # 1-1.) The
complaint makes reference to an incident that occurred on August
22, 2009, with respect to Mr. Kozlowski (Doc. # 1-1 at 5), and
then states that during the same time Ms. Kozlowski's rights
under the ADA were violated (id.). Plaintiffs go on to provide a
demand with various forms of requested relief. (Id. at 5-.) There
are no factual allegations that describe or otherwise inform the
defendants how Plaintiffs' rights under the ADA were violated. Nor
is it clear whether Plaintiff is bringing this action Title I of the ADA
(prohibiting employment discrimination on the basis of disability)
or Title II of the ADA (prohibiting discrimination against those with
disabilities in the provision of services, programs and activities
provided by a public entity).
If Plaintiffs seek to state a claim under Title I of the ADA,
they must allege facts showing that: (1) they are disabled within
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the meaning of the ADA; (2) they are "qualified individuals"
capable of performing the essential functions of the job at issue,
with or without reasonable accommodation; and (3) were
unlawfully discriminated against because of their disability. Smith
v. Clark County School Dist., 727 F.3d 950, 955 (9th Cir. 2013)
(citing Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th
Cir. 1999)).
If Plaintiffs seek to state a claim under Title II of the ADA,
they must allege facts showing that they are qualified individuals
with disabilities as the term is defined under the ADA and were
denied the benefits of the services, programs, or activities or
subject to discrimination by a public entity (which includes any
State or local government, department, agency, special purpose
district or other instrumentality of a State or States or local
government). See 42 U.S.C. § § 12131, 12132.
Plaintiffs must include facts and not simply legal conclusions
demonstrating "a claim to relief that is plausible on its face."
Twombly, 550 U.S. at 570. In addition, facts must be included with
respect to each of the Plaintiffs' claims that their rights were
violated under the ADA.
In light of these noted deficiencies, Plaintiffs' complaint (Doc.
# 1-1) is dismissed without prejudice.
III. CONCLUSION
(1) Plaintiffs' application to proceed in forma pauperis
(Doc. # 1) is GRANTED. The Plaintiffs are permitted to maintain
this action to conclusion without the necessity of prepayment of
fees or costs or the giving of security therefor. This order granting
in forma pauperis status does not extend to the issuance of
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subpoenas at government expense.
(2) The Clerk is instructed to FILE the complaint (Doc.
# 1-1); however, the complaint is DISMISSED WITHOUT
PREJUDICE.
(3) Plaintiffs have THIRTY DAYS from the date of this Order
to file an amended complaint remedying, if possible, the
deficiencies noted in this Order. Plaintiffs are advised that
pursuant to Local Rule 15-1, if they choose to file an amended
complaint, it shall be complete in itself without reference to any
previous complaint. Plaintiffs shall clearly file the amended
complaint as such by placing the words "AMENDED
COMPLAINT" on page 1 in the caption, and shall place the case
number above the words "AMENDED COMPLAINT." Any
allegations, parties, or requests for relief from prior papers that
are not carried forward in the amended complaint will no longer
be before the court. Plaintiffs are cautioned that if they fail to file
an amended complaint within the time period specified above, the
action may be dismissed.

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IT IS SO ORDERED.
Dated: May 14, 2014.

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__________________________
WILLIAM G. COBB
U.S. MAGISTRATE JUDGE

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