DeGrandi v. Reno Police Department et al

Filing 4

ORDER - Plaintiff's IFP application (ECF No. 1 ) is GRANTED. The Clerk shall FILE the Complaint (ECF No. 1 -1). The Complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff has 30 DAYS from the date of this Order to file an amended complaint (by 10/15/2022) correcting the deficiencies noted herein. Signed by Magistrate Judge Craig S. Denney on 9/15/2022. (Copies have been distributed pursuant to the NEF - HKL)

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Case 3:22-cv-00295-MMD-CSD Document 4 Filed 09/15/22 Page 1 of 4 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CHRISTOPHER DEGRANDI, 4 Case No.: 3:22-cv-00295-MMD-CSD Order Plaintiff 5 v. Re: ECF Nos. 1, 1-1 6 RENO POLICE DEPARTMENT, R.T.C. BUS Co., 7 Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 1) and pro se complaint (ECF No. 1-1). I. IFP APPLICATION A person may be granted permission to proceed IFP 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(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to all actions filed IFP, not just prisoner actions). 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 [IFP]. The application must be made on the form provided by the court and must 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) Case 3:22-cv-00295-MMD-CSD Document 4 Filed 09/15/22 Page 2 of 4 1 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 2 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 3 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 4 therefore, the application is granted. 5 II. SCREENING 6 A. Standard 7 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 8 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 9 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 10 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). 11 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 12 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 13 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 14 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 15 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 16 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 17 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 18 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 19 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 20 The court must accept as true the allegations, construe the pleadings in the light most 21 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 22 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 23 2 Case 3:22-cv-00295-MMD-CSD Document 4 Filed 09/15/22 Page 3 of 4 1 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 2 (1980) (internal quotation marks and citation omitted). 3 A complaint must contain more than a “formulaic recitation of the elements of a cause of 4 action,” it must contain factual allegations sufficient to “raise a right to relief above the 5 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 6 must contain something more … than … a statement of facts that merely creates a suspicion [of] 7 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 8 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 9 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 10 A dismissal should not be without leave to amend unless it is clear from the face of the 11 complaint that the action is frivolous and could not be amended to state a federal claim, or the 12 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 13 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 14 B. Plaintiff’s Complaint 15 Plaintiff’s complaint names the Reno Police Department and R.T.C. Bus Co. as 16 defendants. Plaintiff alleges that on December 18, 2020, the bus driver opened the door to the 17 bus and two passengers threw Plaintiff on the sidewalk. The police arrived ten minutes later and 18 asked Plaintiff for a report, and he said he would give a report, but not at that time. He went to 19 Renown Hospital. (ECF No. 1-1 at 4-5.) 20 Plaintiff does not state a colorable claim against the Reno Police Department or the 21 R.T.C. Bus Co. He alleges that two other passengers assaulted him; however, there are no 22 allegations of wrongdoing or any violations of his rights by the Reno Police Department or the 23 3 Case 3:22-cv-00295-MMD-CSD Document 4 Filed 09/15/22 Page 4 of 4 1 R.T.C. Bus Co. Therefore, Plaintiff’s complaint will be dismissed; however, the court will afford 2 Plaintiff an opportunity to try to amend to state a colorable claim for relief. 3 III. CONCLUSION 4 (1) Plaintiff’s IFP application (ECF No. 1) is GRANTED. 5 (2) The Clerk shall FILE the Complaint (ECF No. 1-1). 6 (3) The Complaint is DISMISSED WITH LEAVE TO AMEND. 7 (4) Plaintiff has 30 DAYS from the date of this Order to file an amended complaint 8 correcting the deficiencies noted above. The amended complaint must be complete in and of 9 itself without referring or incorporating by reference any previous complaint. Any allegations, 10 parties, or requests for relief from a prior complaint that are not carried forwarded in the 11 amended complaint will no longer be before the court. Plaintiff shall clearly title the amended 12 pleading as “AMENDED COMPLAINT.” If Plaintiff fails to file an amended complaint within 13 the 30 days, the action may be dismissed. 14 IT IS SO ORDERED. 15 16 Dated: September 15, 2022 17 _________________________________ Craig S. Denney United States Magistrate Judge 18 19 20 21 22 23 4

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