Frickx v. Venegas

• Court: District Court, D. Nevada
• Decided: March 25, 2020
• Docket: 2:19-cv-00942
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 ALAN JOHN FRICKX, Case No. 2:19-cv-00942-JAD-DJA 6 Plaintiff, 7 ORDER v. 8 LUIS MACIA VENEGAS, ET AL., 9 Defendants. 10 11 This matter is before the Court on Plaintiff Alan John Frickx’s Motion/Application for 12 Leave to Proceed in forma pauperis (ECF No. 1) and Complaint (ECF No. 1-1), filed on June 3, 13 2019. 14 I. In Forma Pauperis Application 15 Plaintiff filed the affidavit required by § 1915(a). (ECF No. 1). Plaintiff has shown an 16 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in 17 forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Clerk’s Office is further 18 INSTRUCTED to file the complaint on the docket. The Court will now review Plaintiff’s 19 complaint. 20 II. Screening the Complaint 21 Upon granting an application to proceed in forma pauperis, courts additionally screen the 22 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the 23 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 24 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 25 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the 26 complaint with directions as to curing its deficiencies, unless it is clear from the face of the 27 1 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 2 F.3d 1103, 1106 (9th Cir. 1995). 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 4 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 5 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th 6 Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 7 showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 8 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands 9 “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” 10 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 11 The court must accept as true all well-pled factual allegations contained in the complaint, but the 12 same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679. Mere recitals of the 13 elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. 14 Secondly, where the claims in the complaint have not crossed the line from conceivable to 15 plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se 16 complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. 17 Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings 18 is required after Twombly and Iqbal). 19 In this case, Plaintiff attempts to bring claims under 42 U.S.C. § 1983 against four North 20 Las Vegas Police Officers, in their official capacity only. To state a claim under Section 1983, a 21 plaintiff must allege that a right secured by the Constitution has been violated and the deprivation 22 was committed by a person acting under color of state law. See, e.g., Gibson v. U.S., 781 F.2d 23 1334, 1338 (9th Cir.1986); West v. Atkins, 487 U.S. 42, 48 (1988); Long v. County of Los 24 Angeles, 442 F.3d 1178, 1185 (9th Cir.2006). States and state officers sued in their official 25 capacity are not “persons” for the purposes of a section 1983 action, and generally, they may not 26 be sued under the statute. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). However, 27 Section 1983 does allow suits against state officers in their individual capacities. Hafer v. Melo, 1 is able to establish: (1) that the official caused the deprivation of the plaintiff’s rights while acting 2 personally under color of state law, and (2) that the official is not entitled to the protection of 3 qualified immunity. See Kentucky v. Graham, 473 U.S. 159 (1985); Anderson v. Creighton, 483 4 U.S. 635, 638 (1987). 5 Plaintiff claims he that his Fourth Amendment rights were violated on June 4, 2018 6 through three days of incarceration and one year post incarceration, in which he claims to have 7 suffered PTSD. Specifically, Plaintiff alleges that he was subject to an illegal search and seizure, 8 false arrest, and had a case dismissed on August 13, 2018 by Justice Court. Based on the paucity 9 of factual allegations, the Court is unable to find that Plaintiff can state a colorable Fourth 10 Amendment violation. It is unclear if he is challenging his state court case or the events leading 11 up to his arrest. Plaintiff will be given leave to amend and should include specific factual 12 allegations setting forth each claim, against each defendant, in order for the Court to determine if 13 his claims are able to survive screening. 14 IT IS THEREFORE ORDERED that Plaintiff’s Motion/Application to proceed in forma 15 pauperis (ECF No. 1) is GRANTED. Plaintiff shall not be required to pre-pay the filing fee of 16 four hundred dollars ($400.00). Plaintiff is permitted to maintain this action to conclusion without 17 the necessity of prepayment of any additional fees or costs or the giving of a security therefor. 18 This order granting leave to proceed in forma pauperis shall not extend to the issuance and/or 19 service of subpoenas at government expense. 20 IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiff’s Complaint 21 (ECF No. 1-1) on the docket, but shall not issue summons. 22 IT IS FURTHER ORDERED that the Complaint is dismissed without prejudice for failure 23 to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have until 24 April 15, 2020 to file an amended complaint if the noted deficiencies can be corrected. If 25 Plaintiff chooses to amend the complaint, Plaintiff is informed that the Court cannot refer to a 26 prior pleading (i.e., the original complaint) in order to make the amended complaint complete. 27 This is because, as a general rule, an amended complaint supersedes the original complaint. 1 any prior pleading. Once a plaintiff files an amended complaint, the original complaint no longer 2 serves any function in the case. Therefore, in an amended complaint, as in an original complaint, 3 each claim and the involvement of each Defendant must be sufficiently alleged. Failure to 4 comply with this order will result in the recommended dismissal of this case. 5 6 DATED: March 25, 2020. 7 DANIEL J. ALBREGTS 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27