Baquero v. Lallo

• Court: District Court, D. Nevada
• Decided: May 23, 2023
• Docket: 2:23-cv-00775
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 William Baquero, Case No. 2:23-cv-00775-GMN-BNW 8 Plaintiff, 9 ORDER v. 10 Christopher Lallo, et al., 11 Defendants. 12 13 14 Plaintiff William Baquero filed A notice to cease and desist which this Court construes as 15 a complaint. (ECF Nos. 2-2). He filed an application to proceed in forma pauperis (IFP 16 application). (ECF No. 2.) His IFP application and complaint are now before the Court for review 17 under 28 U.S.C. § 1915. 18 Plaintiff submitted the declaration required by 28 U.S.C. § 1915(a) showing an inability to 19 prepay fees and costs or give security for them. Accordingly, the Court will grant Plaintiff’s IFP 20 application (ECF No. 2). 21 I. Factual and Procedural Background 22 Baquero’s complaint is long and contains many citations to the United States Constitution 23 and several cases. At bottom, Baquero complains he is being forced, under duress, to participate 24 “in this court” at hearing for alleged non-payment of child support. 25 II. Legal Standard 26 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 27 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable 1 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 2 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 3 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 5 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 6 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 7 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 8 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 9 2014) (quoting Iqbal, 556 U.S. at 678). 10 In considering whether the complaint is sufficient to state a claim, all allegations of 11 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 12 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 13 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 14 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 15 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 16 Unless it is clear that the complaint’s deficiencies could not be cured through amendment, a pro 17 se plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 18 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 19 III. Analysis 20 First, the Court notes that no such hearing is being held in this court. Any such hearing is 21 likely taking place in state court. 22 Next, assuming Baquero intends to file in federal court, it is unclear to the Court what claims 23 Baquero is attempting to bring forth. The court therefore will dismiss the complaint without 24 prejudice for Plaintiff to file an amended complaint (if he truly intends to proceed in federal 25 court) to clarify the claims and parties in this matter. 26 If Plaintiff chooses to file an amended complaint, Plaintiff is advised all defendants must be 27 identified in the caption of the pleading and that he must specify which claims he is alleging 1 against which defendants. Although the Federal Rules of Civil Procedure adopt a flexible 2 pleading policy, Plaintiff still must give defendants fair notice of each of the claims Plaintiff is 3 alleging against each defendant. Specifically, Plaintiff must allege facts showing how each 4 named defendant is involved and the approximate dates of their involvement. 5 Plaintiff further is advised that in drafting his amended complaint, all that is required is 6 that he state, in short and plain terms, a claim showing an entitlement to relief. See Fed. R. Civ. 7 P. 8(a). Although Plaintiff must give the defendants fair notice of the claims alleged against 8 them, intricately detailed and lengthy factual allegations are not necessary. Plaintiff is advised 9 that if he files an amended complaint, the original complaint (ECF No. 2-2) will no longer serve 10 any function in this case. As such, if Plaintiff files an amended complaint, each claim and the 11 involvement of each defendant must be alleged sufficiently. The court cannot refer to a prior 12 pleading or to other documents to make Plaintiff’s amended complaint complete. The amended 13 complaint must be complete in and of itself without reference to prior pleadings or to other 14 documents. 15 If Plaintiff chooses to file an amended complaint curing the deficiencies outlined in this 16 order, Plaintiff must do so within 30 days from the date of this order. If Plaintiff does not file an 17 amended complaint, the court will recommend that this case be dismissed, without prejudice. 18 IV. CONCLUSION 19 IT IS THEREFORE ORDERED that Plaintiff’s Motion to Proceed in Forma Pauperis 20 (ECF No. 2) is GRANTED. 21 IT IS FURTHER ORDERED that the Clerk of Court must file the complaint (ECF No. 22 2-2). 23 IT IS FURTHER ORDERED that the complaint (ECF No. 2-2) is DISMISSED with 24 leave to amend as stated in this order. 25 IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint, it 26 must be filed within 30 days from the date of this order. 27 ] IT IS FURTHER ORDERED that the Clerk of Court must send to Plaintiff the approved 2 || form for filing a § 1983 complaint, instructions for the same, and a copy of his complaint (ECF 3 || No. 2-2). 4 DATED: May 23, 2023 5 pr La WEED BRENDA WEKSLER 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 4 of 4