McKinney Jr. v. Valentin-Reyes

• Court: District Court, D. Nevada
• Decided: January 3, 2023
• Docket: 2:22-cv-01644
• Status: Unknown

Opinion

1 UNITED STATES D ISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Don L. McKinney Jr., Case No. 2:22-cv-01644-APG-BNW

5 Plaintiff, Order 6 v.

7 Argenis Valentin-Reyes, et al.,

8 Defendants.

9 10 This Court previously screened Plaintiff’s complaint twice. ECF Nos. 4 and 6. In the first 11 screening order, the Court explained that Plaintiff needed to establish complete diversity between 12 Defendants and him. ECF No. 4. Plaintiff filed a First Amended Complaint demonstrating that 13 this Court has diversity jurisdiction over the parties. ECF No. 5. Nevertheless, because the First 14 Amended Complaint did not include any facts related to the dispute between Plaintiff and 15 Defendants, the Court dismissed the First Amended Complaint with leave to amend. ECF No. 6. 16 Plaintiff now files a Second Amended Complaint. ECF No. 7. The Second Amended 17 Complaint does not include sufficient facts related to the dispute between Plaintiff and 18 Defendants for the Court to determine whether Plaintiff is alleging claims of negligence, 19 negligent entrustment, or both. Accordingly, the Court will dismiss the Second Amended 20 Complaint with leave to amend. 21 I. Analysis 22 A. Screening Standard 23 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 24 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 25 and dismiss claims that are frivolous, malicious, fail to state a claim upon which relief may be 26 granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 27 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 1 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 2 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 3 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 4 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 5 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 6 2014) (quoting Iqbal, 556 U.S. at 678). 7 In considering whether the complaint is sufficient to state a claim, all allegations of 8 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 9 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 10 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 11 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 12 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. But 13 unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 14 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 15 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 16 B. Screening the Complaint 17 Here, Plaintiff alleges that Defendant Valentin-Reyes was driving a semi-truck on October 18 31, 2020 and struck Plaintiff. ECF No. 7. Plaintiff alleges that the semi-truck was owned and 19 registered by Defendants Eagle Express and Nidia Bolanos. Id. Plaintiff alleges that Valentin- 20 Reyes was driving the semi-truck with the consent of Eagle Express and Nidia Bolanos. Id. He 21 claims that Eagle Express and Nidia Bolanos were “negligent for entrusting the vehicle to 22 defendant.” Id. The relief sought includes, but is not limited to, medical costs and loss of income. 23 i. Negligence 24 In Nevada, “[i]t is well established that to prevail on a negligence claim, a plaintiff must 25 establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal 26 causation, and (4) damages.” Sanchez v. Wal–Mart Stores, Inc., 125 Nev. 818, 824 (2009). 27 To the extent that Plaintiff attempts to bring a claim for negligence, the Second Amended 1 must also allege the existence of the duty for drivers to exercise reasonable care (the first 2 element) and that the breach of that duty caused the accident (the third element). Plaintiff must 3 also specify which defendant(s) is being sued for this claim. 4 ii. Negligent Entrustment 5 “The key elements [of a negligent entrustment claim] are whether an entrustment actually 6 occurred, and whether the entrustment was negligent.” Zugel v. Miller, 100 Nev. 525, 527 (1984). 7 Under Nevada law, the theory of negligent entrustment “appl[ies] where one who has the right to 8 control the car permits another to use it in circumstances where he knows or should know that 9 such use may create an unreasonable risk of harm to others.” Mills v. Continental Parking Corp., 10 86 Nev. 724, 726 (1970). 11 To the extent that Plaintiff attempts to bring a claim for negligent entrustment, the Second 12 Amended Complaint only alleges that Valentin-Reyes was driving the semi-truck with the 13 consent of Eagle Express and Nidia Bolanos. Thus, while the first element is met, Plaintiff must 14 also allege facts that set forth why the entrustment was negligent—how/why is it that Eagle 15 Express and Nidia Bolanos should have known entrusting the semi-truck to Valentin-Reyes 16 would create an unreasonable risk of harm. 17 Based on these deficiencies, the Court will dismiss the complaint without prejudice and 18 with leave for Plaintiff to file a Third Amended Complaint. 19 If Plaintiff chooses to file a Third Amended Complaint, the document must be titled 20 “Third Amended Complaint.” The Third Amended Complaint must again recite the information 21 needed to demonstrate the Court has diversity jurisdiction over this case (that is, explain that 22 Plaintiff is a citizen of Nevada and that each defendant is a citizen of Utah and the amount in 23 controversy). Additionally, the Third Amended Complaint must contain a short and plain 24 statement describing the underlying case and each defendant’s involvement (as explained in the 25 analysis above). See Fed. R. Civ. P. 8(a)(2). 26 Additionally, Plaintiff is advised that if he files his Third Amended Complaint, the 27 previous complaint (ECF No. 1-1), the Amended Complaint (ECF No. 5), and the Second 1 Amended Complaint must be complete in and of itself without reference to prior pleadings or 2 other documents. The Court cannot refer to a prior pleading or other documents to make 3 Plaintiff’s Third Amended Complaint complete. 4 II. CONCLUSION 5 IT IS THEREFORE ORDERED that Plaintiff’s Second Amended Complaint (ECF No. 7) 6 is dismissed without prejudice. 7 IT IS FURTHER ORDERED that Plaintiff will have until January 31, 2023 to file a Third 8 Amended Complaint. Failure to comply with this order will result in a recommendation that this 9 case be dismissed. 10 11 DATED: January 3, 2023

12 BRENDA WEKSLER 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27