UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3
4 CAMERON BELL, Case No. 2:21-cv-00365-KJD-BNW 5 Plaintiff, SCREENING ORDER ON 6 v. AMENDED COMPLAINT (ECF No. 8-1) 7 STRUCK LOVE BOJANOWSKI AND ACEDO PLC, et al., 8 Defendants. 9 10 Plaintiff, who is in the custody of the Federal Bureau of Prisons (“BOP”), has 11 submitted an amended civil rights complaint pursuant to 42 U.S.C. § 1983, and has filed 12 two applications to proceed in forma pauperis1, a motion to send a copy of his lawsuit to 13 a news station, and a motion for docket sheet. (ECF Nos. 4, 5, 8, 8-1, 9). Plaintiff has 14 submitted multiple complaints in this case (see ECF Nos. 1-1, 5-1, 8-1). The Court treats 15 the amended complaint submitted at ECF No. 8-1 as the operative complaint because 16 amended pleadings supersede the original complaint. See Hal Roach Studios, Inc. v. 17 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact 18 that a party was named in the original complaint is irrelevant; an amended pleading 19 supersedes the original”). The Court now screens Plaintiff’s amended civil rights 20 complaint (ECF No. 8-1) under 28 U.S.C. § 1915A and addresses the motions. 21 SCREENING STANDARD 22 Federal courts must conduct a preliminary screening in any case in which an 23 incarcerated person seeks redress from a governmental entity or officer or employee of 24 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 25 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 26
27 1 The Court denies Plaintiff’s first application to proceed in forma pauperis (ECF 28 No. 4) as moot and grants his second application to proceed in forma pauperis (ECF No. 5). 2 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 3 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 5 (1) the violation of a right secured by the Constitution or laws of the United States, and 6 (2) that the alleged violation was committed by a person acting under color of state law. 7 See West v. Atkins, 487 U.S. 42, 48 (1988). 8 In addition to the screening requirements under § 1915A, pursuant to the Prison 9 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 10 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 11 to state a claim on which relief may be granted, or seeks monetary relief against a 12 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 13 complaint for failure to state a claim upon which relief can be granted is provided for in 14 Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 15 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 16 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 17 the complaint with directions as to curing its deficiencies, unless it is clear from the face 18 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 19 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 20 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 21 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 22 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 23 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 24 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all 25 allegations of material fact stated in the complaint, and the court construes them in the 26 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 27 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 28 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 2 must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 3 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 4 insufficient. Id. 5 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 6 that, because they are no more than mere conclusions, are not entitled to the assumption 7 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 8 the framework of a complaint, they must be supported with factual allegations.” Id. “When 9 there are well-pleaded factual allegations, a court should assume their veracity and then 10 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 11 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 12 requires the reviewing court to draw on its judicial experience and common sense.” Id. 13 Finally, all or part of a complaint filed by an incarcerated person may therefore be 14 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 15 This includes claims based on legal conclusions that are untenable (e.g., claims against 16 defendants who are immune from suit or claims of infringement of a legal interest which 17 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 18 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 19 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 20 SCREENING OF AMENDED COMPLAINT 21 In the amended complaint, Plaintiff reiterates the basis of a prisoner civil rights 22 lawsuit that he filed in federal court on October 23, 2017. (ECF No. 8-1 at 7). Plaintiff 23 asserts that the judge in that case ruled in favor of the defendants on summary judgment. 24 (Id.) However, Plaintiff alleges that the defendants’ attorney in that case, Ashlee Hesman, 25 her law firm, and other representatives of CoreCivic, fabricated video footage and 26 materially altered a medical report causing Plaintiff to lose $8 million in relief. (Id.) Struck 27 Love Bojanowski and Acedo PLC, a law firm, and the Nevada Attorney General 28 2 Plaintiff seeks $1 million in this case. (Id. at 10).
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UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3
4 CAMERON BELL, Case No. 2:21-cv-00365-KJD-BNW 5 Plaintiff, SCREENING ORDER ON 6 v. AMENDED COMPLAINT (ECF No. 8-1) 7 STRUCK LOVE BOJANOWSKI AND ACEDO PLC, et al., 8 Defendants. 9 10 Plaintiff, who is in the custody of the Federal Bureau of Prisons (“BOP”), has 11 submitted an amended civil rights complaint pursuant to 42 U.S.C. § 1983, and has filed 12 two applications to proceed in forma pauperis1, a motion to send a copy of his lawsuit to 13 a news station, and a motion for docket sheet. (ECF Nos. 4, 5, 8, 8-1, 9). Plaintiff has 14 submitted multiple complaints in this case (see ECF Nos. 1-1, 5-1, 8-1). The Court treats 15 the amended complaint submitted at ECF No. 8-1 as the operative complaint because 16 amended pleadings supersede the original complaint. See Hal Roach Studios, Inc. v. 17 Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact 18 that a party was named in the original complaint is irrelevant; an amended pleading 19 supersedes the original”). The Court now screens Plaintiff’s amended civil rights 20 complaint (ECF No. 8-1) under 28 U.S.C. § 1915A and addresses the motions. 21 SCREENING STANDARD 22 Federal courts must conduct a preliminary screening in any case in which an 23 incarcerated person seeks redress from a governmental entity or officer or employee of 24 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 25 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 26
27 1 The Court denies Plaintiff’s first application to proceed in forma pauperis (ECF 28 No. 4) as moot and grants his second application to proceed in forma pauperis (ECF No. 5). 2 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 3 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 4 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 5 (1) the violation of a right secured by the Constitution or laws of the United States, and 6 (2) that the alleged violation was committed by a person acting under color of state law. 7 See West v. Atkins, 487 U.S. 42, 48 (1988). 8 In addition to the screening requirements under § 1915A, pursuant to the Prison 9 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 10 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 11 to state a claim on which relief may be granted, or seeks monetary relief against a 12 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 13 complaint for failure to state a claim upon which relief can be granted is provided for in 14 Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 15 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 16 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 17 the complaint with directions as to curing its deficiencies, unless it is clear from the face 18 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 19 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 20 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 21 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 22 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 23 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 24 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all 25 allegations of material fact stated in the complaint, and the court construes them in the 26 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 27 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 28 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 2 must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 3 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 4 insufficient. Id. 5 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 6 that, because they are no more than mere conclusions, are not entitled to the assumption 7 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 8 the framework of a complaint, they must be supported with factual allegations.” Id. “When 9 there are well-pleaded factual allegations, a court should assume their veracity and then 10 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 11 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 12 requires the reviewing court to draw on its judicial experience and common sense.” Id. 13 Finally, all or part of a complaint filed by an incarcerated person may therefore be 14 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 15 This includes claims based on legal conclusions that are untenable (e.g., claims against 16 defendants who are immune from suit or claims of infringement of a legal interest which 17 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 18 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 19 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 20 SCREENING OF AMENDED COMPLAINT 21 In the amended complaint, Plaintiff reiterates the basis of a prisoner civil rights 22 lawsuit that he filed in federal court on October 23, 2017. (ECF No. 8-1 at 7). Plaintiff 23 asserts that the judge in that case ruled in favor of the defendants on summary judgment. 24 (Id.) However, Plaintiff alleges that the defendants’ attorney in that case, Ashlee Hesman, 25 her law firm, and other representatives of CoreCivic, fabricated video footage and 26 materially altered a medical report causing Plaintiff to lose $8 million in relief. (Id.) Struck 27 Love Bojanowski and Acedo PLC, a law firm, and the Nevada Attorney General 28 2 Plaintiff seeks $1 million in this case. (Id. at 10). 3 The Court dismisses this case with prejudice as amendment would be futile. This 4 lawsuit is attempting to challenge rulings and alleged fraudulent conduct that took place 5 in a different federal civil rights lawsuit. If Plaintiff wants to challenge the rulings in that 6 other lawsuit, he needs to file an appeal in that other case. If Plaintiff is trying to change 7 the final judgment or order in that other case due to fraud, Plaintiff should review Federal 8 Rule of Civil Procedure 60(b)(3) and file the appropriate motion in that other case. Rule 9 60(b)(3) provides that “[o]n motion and just terms, the court may relieve a party or its legal 10 representative from a final judgment, order, or proceeding for the following reasons . . . 11 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct 12 by an opposing party.” 13 The Court denies Plaintiff’s motion to send copies of his lawsuit to a news channel 14 (ECF No. 8). The Court grants Plaintiff’s motion for a copy of the docket sheet (ECF No. 15 9). 16 CONCLUSION 17 It is therefore ordered that the first application to proceed in forma pauperis (ECF 18 No. 4) is denied as moot. 19 It is further ordered that Plaintiff's application to proceed in forma pauperis (ECF 20 No. 5) without having to prepay the full filing fee is granted. Plaintiff will not be required 21 to pay an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant 22 to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act. The movant herein 23 is permitted to maintain this action to conclusion without the necessity of prepayment of 24 fees or costs or the giving of security therefor. 25 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison 26 Litigation Reform Act, the Federal Bureau of Prisons will forward payments from the 27 account of Cameron Bell, #49789-048 to the Clerk of the United States District Court, 28 District of Nevada, 20% of the preceding month's deposits (in months that the account 1 || exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of 2 || the Court will send a copy of this order to the Finance Division of the Clerk’s Office. The 3 || Clerk will send a copy of this order to the attention of Chief of Inmate Services, USP 4 || Victorville, U.S. Penitentiary, P.O. Box 5400, Adelanto, CA 92301. 5 It is further ordered that the full filing fee will still be due, pursuant to 28 U.S.C. 6 || §1915, as amended by the Prison Litigation Reform Act, even though this action is 7 || dismissed. 8 It is further ordered that Clerk of the Court file the amended complaint (ECF No. 8- 9 || 1) and send Plaintiff a courtesy copy. This is the operative complaint. 10 It is further ordered that the amended complaint (ECF No. 8-1) is dismissed in its 11 || entirety with prejudice as amendment would be futile. 12 It is further ordered that the motion to send a copy of the lawsuit to a news channel 13 || (ECF No. 8) is denied. 14 It is further ordered that the motion for a copy of the docket sheet (ECF No. 9) is 15 || granted. The Clerk of the Court will send Plaintiff a courtesy copy of the docket sheet. 16 It is further ordered that the Clerk of the Court will close this case and enter 17 || judgment accordingly. 18 It is further ordered that this Court certifies that any in forma pauperis appeal from 19 || this order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). 20 21 DATED THIS a day of November 2021. bd UNITED STATES DISTRICT JUDGE 24 25 26 27 28