Karriem v. Cellco Partnership Inc., d/b/a Verizon Wireless Inc.

Opinion

UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 LAMONT GARNER KARRIEM, 5 Case No. 2:20-cv-00884-JAD-VCF Plaintiff, 6 vs. ORDER 7 CELLCO PARTNERSHIP INC., dba Verizon Wireless, APPLICATION TO PROCEED IN FORMA 8 Defendants. PAUPERIS (EFC NO. 1); COMPLAINT (ECF 9 NO. 1-1)

10 Before the Court are pro se plaintiff Lamont Garner Karriem’s application to proceed in forma 11 pauperis (ECF No. 1) and complaint (ECF No. 1-1). Karriem’s (1) in forma pauperis application is 12 granted; (2) his complaint is dismissed without prejudice, with leave to amend. 13 DISCUSSION 14 Karriem’s filings present two questions: (1) whether Karriem may proceed in forma pauperis 15 under 28 U.S.C. § 1915(e) and (2) whether Karriem’s complaint states a plausible claim for relief. 16 I. Whether Karriem May Proceed In Forma Pauperis 17 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment of fees or 18 19 security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff “is unable to 20 pay such fees or give security therefor.” Plaintiff’s application to proceed in forma pauperis includes a 21 declaration under penalty of perjury that plaintiff is unable to pay the costs of these proceedings. (ECF 22 No. 1). Plaintiff’s affidavit states that he has no wages and no assets. (Id.) Plaintiff’s application to 23 proceed in forma pauperis is granted. 24

25 // II. Whether Karriem’s Complaint States a Plausible Claim 1 a. Legal Standard 2 Because the Court grants Karriem’s application to proceed in forma pauperis, it must review 3 4 Karriem’s complaint to determine whether the complaint is frivolous, malicious, or fails to state a 5 plausible claim. 28 U.S.C. § 1915(e)(2)(B). Federal Rule of Civil Procedure 8(a)(2) provides that a 6 complaint must contain “a short and plain statement of the claim showing that the [plaintiff] is entitled 7 to relief.” The Supreme Court’s decision in Ashcroft v. Iqbal states that to satisfy Rule 8’s requirements, 8 a complaint’s allegations must cross “the line from conceivable to plausible.” 556 U.S. 662, 680 (2009) 9 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, (2007)). Rule 12(b)(6) of the Federal Rules 10 of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can 11 be granted. A complaint should be dismissed under Rule 12(b)(6) "if it appears beyond a doubt that the 12 plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Buckey v. Los 13 Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 14 “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 15 formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 16 17 Gamble, 429 U.S. 97, 106 (1976)). If the Court dismisses a complaint under § 1915(e), the plaintiff 18 should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is 19 clear from the face of the complaint that the deficiencies could not be cured by amendment. Cato v. 20 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 21 b. Plaintiff’s Complaint 22 Karriem brings claims for invasion of privacy, defamation, gross negligence, intentional 23 infliction of emotional distress, abuse of process, and breach of fiduciary duty against Verizon Wireless 24 because it allegedly cooperated with law enforcement prior to his October 2018 arrest. (ECF No. 1-1 at 25 2 2). It appears the plaintiff is not currently incarcerated, but it is unclear if the plaintiff still has criminal 1 charges pending against him or if his prior charges are subject to appeal. 2 The United States Supreme Court has found that absent extraordinary circumstances, federal 3 4 courts must not interfere with pending state criminal prosecutions, even if the civil litigant alleges 5 violations of his constitutional rights. Younger v. Harris, 401 U.S. 37, 43 (1971). Pursuant to the 6 Younger abstention doctrine federal courts may not stay or enjoin pending state criminal court 7 proceedings, nor grant monetary damages for constitutional violations arising from them. Mann v. Jett, 8 781 F.2d 1448, 1449 (9th Cir. 1986). 9 The plaintiff cannot bring claims against Verizon for cooperating with law enforcement prior to 10 his arrest if the state proceeding is pending. Once the state proceeding has run its course, the Court can 11 decide whether the damages action should proceed. The Court dismisses this action without prejudice: 12 the plaintiff may file an amended complaint that addresses these issues. The Court also notes that 13 plaintiff brough another action in this Court against three other corporate defendants that he alleges 14 cooperated with law enforcement prior to the same 2018 arrest. See Karriem v. Extended Stay America 15 Inc et al., 2:20-cv-00942-RFB-VCF. The plaintiff may add Extended Stay America, Inc., ESH 16 17 Hospitality, Inc, Elix Nunez defendants in his amended complaint in this case, if he wants to, because 18 the facts and circumstances are the same. 19 20 21

24 // 25 3 ACCORDINGLY, 1 IT IS ORDERED that Karriem’s application to proceed in forma pauperis (ECF No. 1) is 2 GRANTED. 3 4 IT IS FURTHER ORDERED that the Clerk of Court shall file the Complaint (ECF No. 1-1). 5 IT IS FURTHER ORDERED that Karriem’s complaint (ECF No. 1-1) is DISMISSED 6 WITHOUT PREJUDICE. 7 IT IS FURTHER ORDERED that Karriem has until Wednesday, July 29, 2020 to file an 8 amended complaint addressing the issues discussed above. Failure to timely file an amended complaint 9 that addresses the deficiencies noted in this Order may result in a recommendation for dismissal with 10 prejudice. 11 IT IS FURTHER ORDERED that if an amended complaint is later filed, the Clerk of the Court is 12 directed NOT to issue summons on the amended complaint. The Court will issue a screening order on 13 the amended complaint and address the issuance of summons at that time, if applicable. See 28 U.S.C. § 14 1915(e)(2). 15 NOTICE 16 17 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 18 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 19 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 20 may determine that an appeal has been waived due to the failure to file objections within the specified 21 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 22 objections within the specified time and (2) failure to properly address and brief the objectionable issues 23 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 24 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. 25 4 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, the plaintiff must immediately file

5 written notification with the court of any change of address. The notification must include proof of

3 || Service upon each opposing party’s attorney, or upon the opposing party if the party is unrepresented by 4 counsel. Failure to comply with this rule may result in dismissal of the action. 5 IT IS SO ORDERED. 6 DATED this 29th day of June 2020.

CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25