2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Jessica M. Brown, Case No. 2:23-cv-02087-APG-DJA 6 Plaintiff, 7 Order v. 8 Case #C-23-370497-1, et al., 9 Defendants. 10 11 Under 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 12 authority to proceed in forma pauperis. (ECF No. 4). Plaintiff also submitted a complaint. (ECF 13 No. 1-1). Plaintiff has also moves for discovery documents. (ECF No. 5). Because the Court 14 finds that Plaintiff’s application is complete, it grants her application to proceed in forma 15 pauperis. The Court also screens Plaintiff’s complaint and dismisses it without prejudice. 16 Finally, the Court denies Plaintiff’s motion for discovery documents as premature and improperly 17 directed to the Court. 18 I. In forma pauperis application. 19 Plaintiff filed the affidavit required by § 1915(a). (ECF No. 4). Plaintiff has shown an 20 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed 21 in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 22 Plaintiff’s complaint. 23 II. Screening the complaint. 24 Upon granting an application to proceed in forma pauperis, courts additionally screen the 25 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 26 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 2 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 3 F.3d 1103, 1106 (9th Cir. 1995). 4 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 5 complaint for failure to state a claim upon which relief can be granted. Review under Rule 6 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 7 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 8 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 9 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 10 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 11 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 12 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 13 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 14 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 15 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 16 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 17 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 18 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 19 construction of pro se pleadings is required after Twombly and Iqbal). 20 Federal courts are courts of limited jurisdiction and possess only that power authorized by 21 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 22 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 23 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 24 federal law creates the cause of action or where the vindication of a right under state law 25 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 26 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 27 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 1 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under 28 U.S.C. § 1332(a), federal 2 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 3 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 4 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 5 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 6 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 7 A. Plaintiff’s allegations. 8 Plaintiff names five Defendants: (1) case #C-23-3704971; (2) probation #V24-0124; 9 (3) probation officer Polslenauska; (3) “Department of Health and Safety”; and (5) “Officer 10 Polslenauska Union.” (ECF No. 1-1 at 2). Plaintiff brings three causes of action: (1) “abuse of 11 power”; (2) “neglect/sexual abuse and misconduct”; and (3) “unprofessional and not respecting 12 victims[’] rights.” (Id. at 3-5). Plaintiff has marked the box that her case arises under 28 U.S.C. 13 § 1331, federal question jurisdiction. The Court dismisses Plaintiff’s complaint for four reasons. 14 First, Plaintiff has named two case/probation numbers as Defendants. But she has 15 provided no authority, and the Court is not aware of any, that allow a Plaintiff to name a case or 16 probation number as a Defendant. Second, Plaintiff’s does not list actionable claims. Plaintiff’s 17 claims, as alleged, do not identify the statutes, constitutional amendments, or legal theories under 18 which they arise. Third, Plaintiff does not provide sufficient facts for the Court to liberally 19 construe her claims as cognizable causes of action. Plaintiff alleges that Polslenauska “violated 20 her rights,” “enforced rules that were not court ordered,” and that others within the probation 21 office “congested [her] social settings.” (ECF No. 1-1 at 2-5). Plaintiff appears to assert that 22 these individuals’ actions resulted in her being sexually assaulted twice. (Id. at 2). However, 23 without additional facts, Plaintiff’s allegations are too conclusory to state a claim upon which 24 relief can be granted. Fourth, because Plaintiff does not identify any federal statute or 25 Constitutional amendment under which her claims arise, Plaintiff does not provide a basis for 26 jurisdiction under the federal question statute, 28 U.S.C. § 1331.
Free access — add to your briefcase to read the full text and ask questions with AI
2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Jessica M. Brown, Case No. 2:23-cv-02087-APG-DJA 6 Plaintiff, 7 Order v. 8 Case #C-23-370497-1, et al., 9 Defendants. 10 11 Under 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 12 authority to proceed in forma pauperis. (ECF No. 4). Plaintiff also submitted a complaint. (ECF 13 No. 1-1). Plaintiff has also moves for discovery documents. (ECF No. 5). Because the Court 14 finds that Plaintiff’s application is complete, it grants her application to proceed in forma 15 pauperis. The Court also screens Plaintiff’s complaint and dismisses it without prejudice. 16 Finally, the Court denies Plaintiff’s motion for discovery documents as premature and improperly 17 directed to the Court. 18 I. In forma pauperis application. 19 Plaintiff filed the affidavit required by § 1915(a). (ECF No. 4). Plaintiff has shown an 20 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed 21 in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 22 Plaintiff’s complaint. 23 II. Screening the complaint. 24 Upon granting an application to proceed in forma pauperis, courts additionally screen the 25 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 26 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 2 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 3 F.3d 1103, 1106 (9th Cir. 1995). 4 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 5 complaint for failure to state a claim upon which relief can be granted. Review under Rule 6 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 7 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 8 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 9 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 10 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 11 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 12 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 13 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 14 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 15 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 16 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 17 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 18 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 19 construction of pro se pleadings is required after Twombly and Iqbal). 20 Federal courts are courts of limited jurisdiction and possess only that power authorized by 21 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 22 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 23 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 24 federal law creates the cause of action or where the vindication of a right under state law 25 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 26 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 27 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 1 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under 28 U.S.C. § 1332(a), federal 2 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 3 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 4 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 5 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 6 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 7 A. Plaintiff’s allegations. 8 Plaintiff names five Defendants: (1) case #C-23-3704971; (2) probation #V24-0124; 9 (3) probation officer Polslenauska; (3) “Department of Health and Safety”; and (5) “Officer 10 Polslenauska Union.” (ECF No. 1-1 at 2). Plaintiff brings three causes of action: (1) “abuse of 11 power”; (2) “neglect/sexual abuse and misconduct”; and (3) “unprofessional and not respecting 12 victims[’] rights.” (Id. at 3-5). Plaintiff has marked the box that her case arises under 28 U.S.C. 13 § 1331, federal question jurisdiction. The Court dismisses Plaintiff’s complaint for four reasons. 14 First, Plaintiff has named two case/probation numbers as Defendants. But she has 15 provided no authority, and the Court is not aware of any, that allow a Plaintiff to name a case or 16 probation number as a Defendant. Second, Plaintiff’s does not list actionable claims. Plaintiff’s 17 claims, as alleged, do not identify the statutes, constitutional amendments, or legal theories under 18 which they arise. Third, Plaintiff does not provide sufficient facts for the Court to liberally 19 construe her claims as cognizable causes of action. Plaintiff alleges that Polslenauska “violated 20 her rights,” “enforced rules that were not court ordered,” and that others within the probation 21 office “congested [her] social settings.” (ECF No. 1-1 at 2-5). Plaintiff appears to assert that 22 these individuals’ actions resulted in her being sexually assaulted twice. (Id. at 2). However, 23 without additional facts, Plaintiff’s allegations are too conclusory to state a claim upon which 24 relief can be granted. Fourth, because Plaintiff does not identify any federal statute or 25 Constitutional amendment under which her claims arise, Plaintiff does not provide a basis for 26 jurisdiction under the federal question statute, 28 U.S.C. § 1331. As outlined above, for the Court 27 to have jurisdiction over Plaintiff’s claims, she must demonstrate that the Court has either federal 1 question or diversity jurisdiction. For these four reasons, the Court dismisses Plaintiff’s 2 complaint without prejudice and with leave to amend. 3 III. Plaintiff’s motion for documents. 4 Plaintiff’s motion requests the Court to “summon[s]” certain documents to aid in 5 Plaintiff’s case. (ECF No. 5). However, because the Court has dismissed Plaintiff’s complaint 6 without prejudice and with leave to amend, there is no operative complaint in this action and no 7 Defendants have been served. As a result, discovery has not begun and Plaintiff’s motion is 8 premature. Additionally, when discovery does begin, Plaintiff’s requests for documents must 9 either be directed at the parties in the litigation or third parties, not the Court. See Fed. R. Civ. P. 10 5(d)(A) (explaining that disclosures under Federal Rule of Civil Procedure 26(a)(1) or (2) and 11 discovery requests must not be filed until they are used in the proceeding or the court orders 12 filing). The Court thus denies Plaintiff’s motion. 13 14 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 15 pauperis (ECF No. 4) is granted. Plaintiff will not be required to pay an initial installment fee. 16 Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as amended by the 17 Prison Litigation Reform Act. The movant herein is permitted to maintain this action to 18 conclusion without the necessity of prepayment of fees or costs or the giving of security therefor. 19 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the 20 Prison Litigation Reform Act, the Nevada Department of Corrections will forward payments 21 from the account of Jessica M. Brown, #1175563 to the Clerk of the United States District Court, 22 District of Nevada, 20% of the preceding month’s deposits (in months that the account exceeds 23 $10.00) until the full $350 filing fee has been paid for this action. The Clerk of the Court will 24 send a copy of this order to the Finance Division of the Clerk’s Office. The Clerk will send a 25 copy of this order to the attention of Chief of Inmate Services for the Nevada Department of 26 Corrections, P.O. Box 7011, Carson City, NV 89702. 27 1 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 2 || unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. $1915, as amended by the 3 || Prison Litigation Reform Act. 4 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file □□□□□□□□□□ 5 || complaint (ECF No. 1-1) on the docket but shall not issue summons. 6 IT IS FURTHER ORDERED that Plaintiff's complaint is dismissed without prejudice 7 || and with leave to amend. 8 IT IS FURTHER ORDERED that Plaintiff shall have until April 10, 2024 to file an 9 || amended complaint to the extent she believes she can correct the noted deficiencies. If Plaintiff 10 || chooses to amend the complaint, Plaintiff is informed that the Court cannot refer to a prior 11 || pleading (1.e., the original complaint) to make the amended complaint complete. This is because, 12 || generally, an amended complaint supersedes the original complaint. Local Rule 15-1(a) requires 13 || that an amended complaint be complete without reference to any prior pleading. Once a plaintiff 14 || files an amended complaint, the original complaint no longer serves any function in the case. 15 || Therefore, in an amended complaint, as in an original complaint, each claim and the involvement 16 || of each Defendant must be sufficiently alleged. Failure to comply with this order may result 17 || in the recommended dismissal of this case. 18 IT IS FURTHER ORDERED that Plaintiff's motion for documents (ECF No. 5) is 19 || denied. 20 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send Plaintiff 21 || acopy of this order. 22 23 DATED: March 11, 2024 QQ) 7 24 Nh O DANIEL J. ALBREGTS 25 UNITED STATES MAGISTRATE JUDGE 26 27 28