1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Jessica M. Brown, 4 2:24-cv-00136-CDS-MDC Plaintiff(s), 5 vs. Order 6 Walmart Stores, et al., 7 Defendant(s). 8 Pending before the Court are plaintiff Jessica Brown’s Applications to Proceed In Forma 9 Pauperis (“IFP”) (ECF Nos. 8 and 10), Motion to Extend Time (ECF No. 9), Motion for Appointment of 10 Counsel (ECF No. 11), and Amended Complaint (ECF No. 6). The Court denies Ms. Brown’s IFP 11 applications (ECF Nos. 8 and 10). The Court denies her Motion to Extend Time (ECF No. 9). The Court 12 dismisses her Amended Complaint (ECF No. 6) with leave to amend. The Court denies her Motion for 13 Appointment of Counsel (ECF No. 11) without prejudice. 14 DISCUSSION 15 I. In Forma Pauperis 16 Ms. Brown filed two IFP applications (ECF Nos. 8 and 10). The Court notes that it previously 17 granted her IFP application (ECF No. 1). ECF No. 4. Therefore, the Court denies her pending IFP 18 applications (ECF Nos. 8 and 10) as moot. 19 The Court warns Ms. Brown that such duplicative filings unnecessarily consume the Court’s 20 resources. See In re McDonald, 489 U.S. 180, 184, 109 S. Ct. 99.3, 103 L. Ed. 2d 158 (1998). Ms. 21 Brown is further warned that future duplicative or improper filings may be struck from the docket 22 without notification. See Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) 23 (holding that district courts have authority to strike an improper filing under their inherent power to 24 control the docket). 25 1 II. Motion to Extend Time 2 Ms. Brown filed a Motion to Extend Time (ECF No. 9). The Motion is titled “Status 3 Check/Update and Motion to Extend.” ECF No. 9 at 1. Most of the Motion seems to update the Court on 4 what has been filed or sent to be filed with the Court. Id. Upon further reviewing the Motion, the Court 5 finds that although Ms. Brown requests an extension, she does not specify what she needs an extension 6 on. Ms. Brown’s handwriting is difficult to read; however, the Court reads that she requests an extension 7 “to better provide proof from courts to courts to help assist ware [sic] the problem is.” Id. at 2. The only 8 time sensitive filing at issue is the deadline to file a First Amended Complaint. However, Ms. Brown 9 does not seem to request an extension of time to file her Amended Complaint – not only because she 10 does not raise it as an issue, but also because the First Amended Complaint was received more than a 11 month prior to the Motion. Therefore, the Court denies her Motion to Extend Time (ECF No. 9). 12 To the extent that Ms. Brown may be requesting a Status Check, the Court denies such requests. 13 “The Court does not provide status checks for its cases and advises Plaintiff to not file such motions.” 14 Redman v. Aranas, No. 317CV00551RCJCBC, 2019 U.S. Dist. LEXIS 99088, 2019 WL 2453656, at 1 15 (D. Nev. June 12, 2019). “Motions such as these put stress on an already overburdened judicial system. 16 The Court receives numerous motions every day and will not provide status checks for its ongoing 17 cases. The Court will address all Parties’ contentions in due course.” Id. 18 III. First Amended Complaint 19 On February 22, 2024, the Court issued a screening Order (ECF No. 4) on Ms. Brown’s original 20 Complaint (ECF No. 1-1). The Court dismissed her original Complaint (ECF No. 1-1) without prejudice 21 (1) for failing to allege how defendant(s) acted under color of state law and (2) potentially being barred 22 by the Heck Doctrine. ECF No. 4 at 3-5. The Court gave Ms. Brown leave to amend her Complaint and 23 ordered her to file an Amended Complaint by April 21, 2024. ECF No. 4 at 6:17-19. Ms. Brown filed an 24 Amended Complaint on March 5, 2024. ECF No. 6. However, the Court finds that Ms. Brown has failed 25 to (1) cure the deficiencies noted in the Court’s Screening Order (ECF No. 4) and (2) file an amended 1 complaint that is “complete in itself.” LR 15-1. The Court dismisses Ms. Brown’s Amended Complaint 2 (ECF No. 6) without prejudice and with leave to amend. 3 a. Legal Standard Upon granting a request to proceed in forma pauperis, the Court must screen the complaint 4 pursuant to 28 U.S.C. § 1915(e). The Court will review the complaint to determine whether the complaint 5 is frivolous, malicious, fails to state a claim in which relief may be granted, or seeks monetary relief 6 7 against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). The Federal Rules of 8 Civil Procedure Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of the 9 claim showing that the [plaintiff] is entitled to relief.” The Supreme Court’s decision in Ashcroft v. Iqbal 10 states that to satisfy Rule 8’s requirement, a complaint’s allegations must cross “the line from conceivable 11 to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). 12 Dismissal for failure to state a claim under § 1915 incorporates the same standard for failure to state a 13 claim under Federal Rule of Civil Procedure Rule 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th 14 Cir. 2012) A complaint should be dismissed under Rule 12(b)(6) “if it appears beyond a doubt that the 15 plaintiff can prove no set of facts in support of her claims that would entitle him to relief.” Buckley v. Los 16 Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 17 “A document filed pro se is “to be liberally construed” and a pro se complaint, however inartfully 18 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 19 20 Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal citations 21 omitted). If the Court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 22 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint 23 that deficiencies could not be cured through amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th 24 Cir. 1995) (emphasis added). 25 “[W]hen a plaintiff files an amended complaint, ‘[t]he amended complaint supersedes the original, 1 the latter being treated thereafter as non-existent.’” Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2 2010) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967)). An amended complaint must be “complete 3 4 in itself, including exhibits, without reference to the superseded pleading.” LR 15-1(a). In other words, 5 the amended complaint is an entirely new document that completely sets forth the facts and claims for 6 relief. At issue is whether Ms. Brown’s Amended Complaint (ECF No. 6) states a claim upon which relief 7 can be granted. 8 b. Analysis 9 On February 22, 2024, the Court issued a Screening Order (ECF No. 4), dismissing Ms. Brown’s 10 Complaint (ECF No.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Jessica M. Brown, 4 2:24-cv-00136-CDS-MDC Plaintiff(s), 5 vs. Order 6 Walmart Stores, et al., 7 Defendant(s). 8 Pending before the Court are plaintiff Jessica Brown’s Applications to Proceed In Forma 9 Pauperis (“IFP”) (ECF Nos. 8 and 10), Motion to Extend Time (ECF No. 9), Motion for Appointment of 10 Counsel (ECF No. 11), and Amended Complaint (ECF No. 6). The Court denies Ms. Brown’s IFP 11 applications (ECF Nos. 8 and 10). The Court denies her Motion to Extend Time (ECF No. 9). The Court 12 dismisses her Amended Complaint (ECF No. 6) with leave to amend. The Court denies her Motion for 13 Appointment of Counsel (ECF No. 11) without prejudice. 14 DISCUSSION 15 I. In Forma Pauperis 16 Ms. Brown filed two IFP applications (ECF Nos. 8 and 10). The Court notes that it previously 17 granted her IFP application (ECF No. 1). ECF No. 4. Therefore, the Court denies her pending IFP 18 applications (ECF Nos. 8 and 10) as moot. 19 The Court warns Ms. Brown that such duplicative filings unnecessarily consume the Court’s 20 resources. See In re McDonald, 489 U.S. 180, 184, 109 S. Ct. 99.3, 103 L. Ed. 2d 158 (1998). Ms. 21 Brown is further warned that future duplicative or improper filings may be struck from the docket 22 without notification. See Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) 23 (holding that district courts have authority to strike an improper filing under their inherent power to 24 control the docket). 25 1 II. Motion to Extend Time 2 Ms. Brown filed a Motion to Extend Time (ECF No. 9). The Motion is titled “Status 3 Check/Update and Motion to Extend.” ECF No. 9 at 1. Most of the Motion seems to update the Court on 4 what has been filed or sent to be filed with the Court. Id. Upon further reviewing the Motion, the Court 5 finds that although Ms. Brown requests an extension, she does not specify what she needs an extension 6 on. Ms. Brown’s handwriting is difficult to read; however, the Court reads that she requests an extension 7 “to better provide proof from courts to courts to help assist ware [sic] the problem is.” Id. at 2. The only 8 time sensitive filing at issue is the deadline to file a First Amended Complaint. However, Ms. Brown 9 does not seem to request an extension of time to file her Amended Complaint – not only because she 10 does not raise it as an issue, but also because the First Amended Complaint was received more than a 11 month prior to the Motion. Therefore, the Court denies her Motion to Extend Time (ECF No. 9). 12 To the extent that Ms. Brown may be requesting a Status Check, the Court denies such requests. 13 “The Court does not provide status checks for its cases and advises Plaintiff to not file such motions.” 14 Redman v. Aranas, No. 317CV00551RCJCBC, 2019 U.S. Dist. LEXIS 99088, 2019 WL 2453656, at 1 15 (D. Nev. June 12, 2019). “Motions such as these put stress on an already overburdened judicial system. 16 The Court receives numerous motions every day and will not provide status checks for its ongoing 17 cases. The Court will address all Parties’ contentions in due course.” Id. 18 III. First Amended Complaint 19 On February 22, 2024, the Court issued a screening Order (ECF No. 4) on Ms. Brown’s original 20 Complaint (ECF No. 1-1). The Court dismissed her original Complaint (ECF No. 1-1) without prejudice 21 (1) for failing to allege how defendant(s) acted under color of state law and (2) potentially being barred 22 by the Heck Doctrine. ECF No. 4 at 3-5. The Court gave Ms. Brown leave to amend her Complaint and 23 ordered her to file an Amended Complaint by April 21, 2024. ECF No. 4 at 6:17-19. Ms. Brown filed an 24 Amended Complaint on March 5, 2024. ECF No. 6. However, the Court finds that Ms. Brown has failed 25 to (1) cure the deficiencies noted in the Court’s Screening Order (ECF No. 4) and (2) file an amended 1 complaint that is “complete in itself.” LR 15-1. The Court dismisses Ms. Brown’s Amended Complaint 2 (ECF No. 6) without prejudice and with leave to amend. 3 a. Legal Standard Upon granting a request to proceed in forma pauperis, the Court must screen the complaint 4 pursuant to 28 U.S.C. § 1915(e). The Court will review the complaint to determine whether the complaint 5 is frivolous, malicious, fails to state a claim in which relief may be granted, or seeks monetary relief 6 7 against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). The Federal Rules of 8 Civil Procedure Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of the 9 claim showing that the [plaintiff] is entitled to relief.” The Supreme Court’s decision in Ashcroft v. Iqbal 10 states that to satisfy Rule 8’s requirement, a complaint’s allegations must cross “the line from conceivable 11 to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). 12 Dismissal for failure to state a claim under § 1915 incorporates the same standard for failure to state a 13 claim under Federal Rule of Civil Procedure Rule 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th 14 Cir. 2012) A complaint should be dismissed under Rule 12(b)(6) “if it appears beyond a doubt that the 15 plaintiff can prove no set of facts in support of her claims that would entitle him to relief.” Buckley v. Los 16 Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 17 “A document filed pro se is “to be liberally construed” and a pro se complaint, however inartfully 18 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 19 20 Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal citations 21 omitted). If the Court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 22 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint 23 that deficiencies could not be cured through amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th 24 Cir. 1995) (emphasis added). 25 “[W]hen a plaintiff files an amended complaint, ‘[t]he amended complaint supersedes the original, 1 the latter being treated thereafter as non-existent.’” Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2 2010) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967)). An amended complaint must be “complete 3 4 in itself, including exhibits, without reference to the superseded pleading.” LR 15-1(a). In other words, 5 the amended complaint is an entirely new document that completely sets forth the facts and claims for 6 relief. At issue is whether Ms. Brown’s Amended Complaint (ECF No. 6) states a claim upon which relief 7 can be granted. 8 b. Analysis 9 On February 22, 2024, the Court issued a Screening Order (ECF No. 4), dismissing Ms. Brown’s 10 Complaint (ECF No. 1-1) because it failed to state a claim upon which relief can be granted. Ms. Brown 11 failed to allege how defendant(s) Walmart and its employee(s) acted under the color of state law. She also 12 failed to show that her case is not barred by the Heck Doctrine. 13 Ms. Brown does not allege any new facts that show that the Walmart employee(s) was acting under 14 the color of state law. ECF No. 6 at 4. As explained to Ms. Brown in the Screening Order (ECF No. 4), to 15 state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and 16 17 laws of the United States and must show that the alleged deprivation was committed by a person acting 18 under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). 19 However, Ms. Brown does not allege any new facts that show there was “governmental compulsion or 20 coercion.” See Rawson v. Recovery Innovations, 975 F.3d 742, 748 (9th Cir. 2020). In other words, Ms. 21 Brown does not show that the state, through the police or otherwise, acted through Walmart and/or its 22 employees to arrest her. Therefore, the Court finds that Ms. Brown has failed to cure this deficiency. Ms. 23 Brown states that she “cannot provide more proof due to [her] incarceration,” being given “the run 24 around,” and “snail mail.” ECF No. 6 at 4. Ms. Brown states that she remembers “he was a Walmart 25 employee” but is unable to provide more than that. ECF No. 6 at 4. The Court acknowledges her 1 difficulties and provides her with another opportunity to amend her Complaint. 2 Although Ms. Brown references her criminal case, C-16-13190531, she does not allege any new 3 4 facts that show that her case is not barred by the Heck Doctrine. See Heck v Humphrey, 512 U.S. 477, 5 483-87 (1994) (holding that if a § 1983 case seeking damages alleges constitutional violations that would 6 necessarily imply the invalidity of a conviction or sentence, the prisoner must establish that the underlying 7 sentence or conviction has been invalidated on appeal, by habeas petition, or through similar proceeding). 8 Ms. Brown has not shown that her 2016 grand larceny conviction, which she spent “2-5 years” in prison 9 for, had been invalidated on appeal. Therefore, the Court finds that Ms. Brown has failed to cure this 10 deficiency. 11 In sum, to allege color of law, Ms. Bronw must allege facts that show whether and how the 12 Walmart employee was acting under the state’s orders in a way that led to her arrest. She has failed to do 13 so. To show that her claim is not barred by Heck, Ms. Brown must show that her 2016 conviction was 14 invalidated through appeal, either through habeas proceedings or otherwise. Ms. Brown has failed to do 15 so. The Court will give Ms. Brown another chance to file an amended complaint. Ms. Brown is cautioned 16 17 that an amended complaint must be complete in itself and cannot make reference to previous pleadings. 18 See LR 15-1(a). An amended complaint supersedes the original complaint, meaning that once Ms. Brown 19 files an amended complaint, the Court does not look back at her previous complaint. See Rhodes v. 20 Robinson, 621 F.3d at 1005. Ms. Brown is also reminded that her amended complaint must comply with 21 Rule 8 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8(a)(1)-(3). 22 IV. Motion for Appointment of Counsel 23 Ms. Brown filed a Motion for Appointment of Counsel (ECF No. 11). She seems to request 24 counsel because there seems to be some confusion in the procedures being utilized and because it is 25 1 unclear what the Courts are asking for. ECF No. 11 at 1. The Court denies Ms. Brown’s Motion for 2 Appointment of Counsel (ECF No. 11) without prejudice. 3 a. Legal Standard 4 While a pro se inmate would likely benefit from the appointment of counsel, that is not the 5 standard the courts must employ in determining whether counsel should be appointed. See Wood v. 6 Houseright, 900 F.2d 1332, 1135-1336 (9th Cir. 1990). A litigant does not have a constitutional right to 7 appointed counsel in 42 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 8 (9th Cir. 1981). While federal courts are empowered to request an attorney to represent an indigent civil 9 litigant under 28 U.S.C. § 1915(e)(1), the court can only grant such requests under extraordinary 10 circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); Wilborn v. 11 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). A finding of such exceptional circumstances requires 12 that the court evaluate both the likelihood of Plaintiff’s success on the merits and the pro se litigant’s 13 ability to articulate his claims in light of the complexity of the legal issues involved. A court may find 14 that "exceptional circumstances" exist if a claim is either factually or legally complex. See, e.g., 15 McElyea v. Babbitt, 833 F.2d 196, 200 n.3 (9th Cir. 1987) (per curiam) (suggesting that a plaintiff's 16 claim concerning the provision of religious books in prison raises "complicated constitutional issues"). 17 Neither factor is controlling; both must be viewed together in making the finding. Terrell v. Brewer, 935 18 F.2d 1015. 1017 (9th Cir. 1991), citing Wilborn, supra, 789 F.2d at 1331. 19 b. Analysis 20 Ms. Brown has not demonstrated a likelihood of success on the merits. The Ninth Circuit has 21 indicated that the articulation of a cognizable claim for relief may itself be sufficient to satisfy the 22 "merit" analysis on a motion for appointment of counsel. Turner v. Riaz, 2018 U.S. Dist. LEXIS 23 194391, at *11 (E.D. Cal. Nov. 13, 2018) (citing Tilei v. McGuiness, 642 Fed. Appx. 719, 722 (9th Cir. 24 2016) (finding that plaintiff's "complaint states a claim for relief, and therefore suggests that he may 25 succeed on the merits”). Ms. Brown’s claims have not yet survived a screening order; thus, this factor 1 weighs against the appointment of counsel. Since she has not yet demonstrated a likelihood of success 2 on the merits, the Court denies her Motion for Appointment of Counsel (ECF No. 11) without prejudice. 3 ACCORDINGLY, 4 IT IS ORDERED that: 5 1. Plaintiff’s IFP applications (ECF Nos. 8 and 10) are DENIED AS MOOT. 6 2. The Motion to Extend Time (ECF No. 10) is DENIED. 7 3. The First Amended Complaint (ECF No. 6) is DISMISSED WITHOUT PREJUDICE and 8 with leave to amend. 9 4. If Plaintiff chooses to file a curing the deficiencies of the First Amended Complaint as 10 outlined in this order, she must file the amended complaint by Friday May 31, 2024. 11 5. The Clerk of the Court will send to Plaintiff the approved form for filing a § 1983 complaint, 12 instructions for the same, and a copy of her Amended Complaint (ECF No. 6). If Plaintiff 13 chooses to file an amended complaint, she must use the approved form and write the words 14 "Second Amended" above the words "Civil Rights Complaint" in the caption. 15 6. If Plaintiff files a Second Amended Complaint, the Clerk of Court is directed NOT to issue 16 summons on the amended complaint. The Court will issue a screening order on the amended 17 complaint and address the issuance of summons at that time, if applicable 18 7. The Motion for Appointment of Counsel (ECF No. 11) is DENIED WITHOUT PREJUDICE. 19 NOTICE 20 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 21 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 22 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 23 may determine that an appeal has been waived due to the failure to file objections within the specified 24 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 25 1 This circuit has also held that (1) failure to file objections within the specified time and (2) 2 || failure to properly address and brief the objectionable issues waives the right to appeal the District 3 || Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Yist, 951 F.2d 4 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 5 || Pursuant to LR JA 3-1, the plaintiff must immediately file written notification with the court of any 6 || change of address. The notification must include proof of service upon each opposing party’s attorney, 7 || or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 8 || result in dismissal of the action. 9 10 DATED this 1* day of May 2024. - i IT IS SO ORDERED. tpl T 12 ZL □ 13 ons Ooi Til 14 United States Magis¢rate Judge 15 16 17 18 19 20 21 22 23 24 25