1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 MR. CLAYTON M. BERNARD-EX, 7 Case No. 2:21-cv-00704-APG-NJK Plaintiff, 8 ORDER v. 9 [Docket No. 1] DEANNA MOLINAR, 10 Defendant. 11 12 Plaintiff is proceeding in this action pro se and has requested authority under 28. U.S.C. § 13 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted a complaint. Docket 14 No. 1-1. 15 I. In Forma Pauperis Application 16 Plaintiff has submitted the affidavit required by § 1915(a). Docket No. 1. Plaintiff has 17 shown an inability to prepay fees and costs or give security for them. Accordingly, Plaintiff’s 18 request to proceed in forma pauperis under § 1915(a) is granted. 19 II. Screening Complaint 20 A. Legal Standard 21 Upon granting an application to proceed in forma pauperis, courts screen the complaint. 22 28 U.S.C. § 1915(e). Section 1915(e) permits courts to dismiss a case if the action is legally 23 “frivolous or malicious,” the complaint fails to state a claim upon which relief may be granted, or 24 the plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). When a court dismisses a complaint under § 1915, the plaintiff should be given 26 leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from 27 the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United 28 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 1 Fed. R. Civ. P. 12(b)(6) provides for dismissal of a complaint for failure to state a claim 2 upon which relief can be granted. Review under Fed. R. Civ. P. 12(b)(6) is essentially a ruling on 3 a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A properly 4 pled complaint must provide a short and plain statement of the claim showing that the pleader is 5 entitled to relief. Fed. R. Civ. P. 8(a)(2); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 6 (2007). Although Fed. R. Civ. P. 8 does not require detailed factual allegations, it demands “more 7 than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 9 Courts must accept as true all well-pled factual allegations contained in the complaint, but the 10 same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of 11 the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 12 678. Additionally, where the claims in the complaint have not crossed the line from conceivable 13 to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 14 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 15 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (finding that liberal 16 construction of pro se pleadings is required after Twombly and Iqbal). “However, a liberal 17 interpretation of a civil rights complaint may not supply essential elements of the claim that were 18 not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 19 B. Analysis 20 Plaintiff asserts claims against Defendant Deanna Molinar, a public defender. Docket No. 21 1-1 at 1, 3. Although difficult to follow, the instant claims appear to arise out of Defendant’s 22 representation of Plaintiff in state court criminal proceedings. Id. at 3. Plaintiff alleges that he is 23 a diplomat and that, on December 20, 2017, he “was injured by Deanna Molinar’s lack of diligence 24 and failure to engage in the appropriate steps to terminate her representation.” Id. at 2, 7. Plaintiff 25 alleges that Defendant violated several rules under the Nevada Rules of Professional Conduct. Id. 26 at 3, 6, 7–8, 10. Plaintiff further alleges that Defendant discriminated against him based on his 27 race and engaged in trademark infringement. Id. at 6–7, 9, 10. Plaintiff appears to allege that 28 Defendant also violated 18 U.S.C. § 242, a criminal statute. Id. at 4–5. Finally, Plaintiff invokes 1 the doctrine of diplomatic immunity and includes an affidavit electronically signed by Suezy Fran 2 Gottlieb-Ex describing, in part, the disclosure of social security numbers and identity theft. Id. at 3 3–4, 33–34. Based on these allegations, Plaintiff requests injunctive relief and at least $500 million 4 in damages. Id. at 11. 5 The Court finds that Plaintiff’s claims in the instant complaint are frivolous. See Denton 6 v. Hernandez, 504 U.S. 25, 33 (1992) (“a finding of factual frivolousness is appropriate when the 7 facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are 8 judicially noticeable facts available to contradict them”). Even if Plaintiff’s claims were not 9 frivolous, the Court finds that Plaintiff’s complaint is deficient because it fails to both establish 10 this Court’s subject matter jurisdiction and state a claim upon which relief can be granted. Plaintiff 11 purports to establish this Court’s jurisdiction under 42 U.S.C. § 1981(a) and Title VII of the Civil 12 Rights Act. Docket No. 1-1 at 2. However, Plaintiff fails to allege sufficient facts establishing a 13 civil rights violation under federal law.1 14 Further, Plaintiff alleges that Defendant “conspired with state officials to deprive [him] of 15 federal constitutional rights” in violation of 42 U.S.C. § 1983. Tower v. Glover, 467 U.S. 914, 915 16 (1984). However, Plaintiff fails to allege sufficient facts establishing the violation of a particular 17 federal constitutional right. See Thomas v. Row Casinos, 2019 WL 7340505, at *2 (D. Nev. Dec. 18 13, 2019) (citing Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)) (“To adequately plead the 19 section 1983 elements, a complaint must identify what constitutional rights each defendant 20 violated, and provide sufficient facts to plausibly support each violation”). Moreover, Plaintiff 21 fails to allege that Defendant’s conduct fell outside the traditional functions of a public defender 22 in state criminal proceedings. See Polk Cty. v.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 MR. CLAYTON M. BERNARD-EX, 7 Case No. 2:21-cv-00704-APG-NJK Plaintiff, 8 ORDER v. 9 [Docket No. 1] DEANNA MOLINAR, 10 Defendant. 11 12 Plaintiff is proceeding in this action pro se and has requested authority under 28. U.S.C. § 13 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted a complaint. Docket 14 No. 1-1. 15 I. In Forma Pauperis Application 16 Plaintiff has submitted the affidavit required by § 1915(a). Docket No. 1. Plaintiff has 17 shown an inability to prepay fees and costs or give security for them. Accordingly, Plaintiff’s 18 request to proceed in forma pauperis under § 1915(a) is granted. 19 II. Screening Complaint 20 A. Legal Standard 21 Upon granting an application to proceed in forma pauperis, courts screen the complaint. 22 28 U.S.C. § 1915(e). Section 1915(e) permits courts to dismiss a case if the action is legally 23 “frivolous or malicious,” the complaint fails to state a claim upon which relief may be granted, or 24 the plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). When a court dismisses a complaint under § 1915, the plaintiff should be given 26 leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from 27 the face of the complaint that the deficiencies could not be cured by amendment. Cato v. United 28 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 1 Fed. R. Civ. P. 12(b)(6) provides for dismissal of a complaint for failure to state a claim 2 upon which relief can be granted. Review under Fed. R. Civ. P. 12(b)(6) is essentially a ruling on 3 a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A properly 4 pled complaint must provide a short and plain statement of the claim showing that the pleader is 5 entitled to relief. Fed. R. Civ. P. 8(a)(2); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 6 (2007). Although Fed. R. Civ. P. 8 does not require detailed factual allegations, it demands “more 7 than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 9 Courts must accept as true all well-pled factual allegations contained in the complaint, but the 10 same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of 11 the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 12 678. Additionally, where the claims in the complaint have not crossed the line from conceivable 13 to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 14 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 15 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010) (finding that liberal 16 construction of pro se pleadings is required after Twombly and Iqbal). “However, a liberal 17 interpretation of a civil rights complaint may not supply essential elements of the claim that were 18 not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 19 B. Analysis 20 Plaintiff asserts claims against Defendant Deanna Molinar, a public defender. Docket No. 21 1-1 at 1, 3. Although difficult to follow, the instant claims appear to arise out of Defendant’s 22 representation of Plaintiff in state court criminal proceedings. Id. at 3. Plaintiff alleges that he is 23 a diplomat and that, on December 20, 2017, he “was injured by Deanna Molinar’s lack of diligence 24 and failure to engage in the appropriate steps to terminate her representation.” Id. at 2, 7. Plaintiff 25 alleges that Defendant violated several rules under the Nevada Rules of Professional Conduct. Id. 26 at 3, 6, 7–8, 10. Plaintiff further alleges that Defendant discriminated against him based on his 27 race and engaged in trademark infringement. Id. at 6–7, 9, 10. Plaintiff appears to allege that 28 Defendant also violated 18 U.S.C. § 242, a criminal statute. Id. at 4–5. Finally, Plaintiff invokes 1 the doctrine of diplomatic immunity and includes an affidavit electronically signed by Suezy Fran 2 Gottlieb-Ex describing, in part, the disclosure of social security numbers and identity theft. Id. at 3 3–4, 33–34. Based on these allegations, Plaintiff requests injunctive relief and at least $500 million 4 in damages. Id. at 11. 5 The Court finds that Plaintiff’s claims in the instant complaint are frivolous. See Denton 6 v. Hernandez, 504 U.S. 25, 33 (1992) (“a finding of factual frivolousness is appropriate when the 7 facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are 8 judicially noticeable facts available to contradict them”). Even if Plaintiff’s claims were not 9 frivolous, the Court finds that Plaintiff’s complaint is deficient because it fails to both establish 10 this Court’s subject matter jurisdiction and state a claim upon which relief can be granted. Plaintiff 11 purports to establish this Court’s jurisdiction under 42 U.S.C. § 1981(a) and Title VII of the Civil 12 Rights Act. Docket No. 1-1 at 2. However, Plaintiff fails to allege sufficient facts establishing a 13 civil rights violation under federal law.1 14 Further, Plaintiff alleges that Defendant “conspired with state officials to deprive [him] of 15 federal constitutional rights” in violation of 42 U.S.C. § 1983. Tower v. Glover, 467 U.S. 914, 915 16 (1984). However, Plaintiff fails to allege sufficient facts establishing the violation of a particular 17 federal constitutional right. See Thomas v. Row Casinos, 2019 WL 7340505, at *2 (D. Nev. Dec. 18 13, 2019) (citing Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)) (“To adequately plead the 19 section 1983 elements, a complaint must identify what constitutional rights each defendant 20 violated, and provide sufficient facts to plausibly support each violation”). Moreover, Plaintiff 21 fails to allege that Defendant’s conduct fell outside the traditional functions of a public defender 22 in state criminal proceedings. See Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (“With respect 23 to . . . § 1983 claims . . . we decide only that a public defender does not act under color of state 24 law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal 25 proceeding”). In any event, “a liberal interpretation of a civil rights complaint may not supply 26 essential elements of the claim that were not initially pled.” Ivey, 673 F.2d at 268. “It is also well 27 1 Instead, Plaintiff offers a litany of vague, conclusory allegations of racial discrimination. 28 See Docket No. 1-1 at 9–10. 1 established that plaintiff may not . . . bring civil claims pursuant to 18 U.S.C. §§ 241 and 242.” 2 Brooks v. Nevada, 2021 WL 1342526, at *3 (D. Nev. Apr. 8, 2021). 3 Finally, the Court may be precluded from exercising jurisdiction under the Younger and 4 Rooker-Feldman doctrines. Plaintiff’s complaint attaches as exhibits two printed copies of 5 proceedings from the Clark County Courts website regarding an action by Plaintiff against 6 Defendant and other individuals. See Docket No. 1-1 at 21–22. “Younger . . . and its progeny 7 espouse a strong federal policy against federal-court interference with pending state judicial 8 proceedings absent extraordinary circumstances.” Middlesex Cty. Ethics Comm. v. Garden State 9 Bar Ass’n, 457 U.S. 423, 431 (1982). Under the Rooker-Feldman doctrine, “lower federal courts 10 are precluded from exercising appellate jurisdiction over final state-court judgments.” Lance v. 11 Dennis, 546 U.S. 459, 463 (2006). Thus, to the extent the proceeding referenced in Plaintiff’s 12 complaint is ongoing, the Court must abstain pursuant to Younger. Alternatively, if Plaintiff 13 “wants this court to overturn a final state court decision then the Rooker-Feldman doctrine 14 precludes review by this court.” Estes v. Gaston, 2012 WL 5839490, at *4 (D. Nev. Nov. 16, 15 2012). 16 III. Conclusion 17 Accordingly, IT IS ORDERED that: 18 1. Plaintiff’s request to proceed in forma pauperis is hereby GRANTED. Docket No. 19 1. Plaintiff shall not be required to pay the filing fee. 20 2. Plaintiff is permitted to maintain this action to conclusion without the necessity of 21 prepayment of any additional fees or costs or the giving of a security therefor. This 22 Order granting leave to proceed in forma pauperis shall not extend to the issuance 23 and/or service of subpoenas at government expense. 24 3. The Complaint is DISMISSED with leave to amend. Plaintiff will have until June 25 1, 2021, to file an Amended Complaint, if the noted deficiencies can be corrected. 26 If Plaintiff chooses to amend the complaint, Plaintiff is informed that the Court 27 cannot refer to a prior pleading (i.e., the original Complaint) in order to make the 28 Amended Complaint complete. This is because, as a general rule, an Amended ] Complaint supersedes the original Complaint. Local Rule 15-1(a) requires that an 2 Amended Complaint be complete in itself without reference to any prior pleading. 3 Once a plaintiff files an Amended Complaint, the original Complaint no longer 4 serves any function in the case. Therefore, in an Amended Complaint, as in an 5 original Complaint, each claim and the involvement of each Defendant must be 6 sufficiently alleged. 7 4. Failure to comply with this order will result in the recommended dismissal of 8 this case. 9 IT IS SO ORDERED. 10 Dated: May 3, 2021 Nancy J. Koppe 12 United Statés Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28