2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 WENDELL DWAYNE O’NEAL, Case No. 2:17-cv-03025-JAD-DJA 6 Plaintiff, 7 ORDER AND v. REPORT AND RECOMMENDATION 8 TERRI ALBERTSON, et al., 9 Defendants. 10 11 This matter is before the Court on pro se Plaintiff Wendell Dwayne O’Neal’s Amended 12 Complaint. (ECF No. 15). He was previously granted the ability to to proceed in forma pauperis 13 and his Complaint was dismissed with leave to amend. (ECF No. 13). He timely filed an 14 Amended Complaint, which the Court will now screen. Additionally, Plaintiff filed a Motion to 15 Consolidate (ECF No. 16) on November 14, 2019, which requests consolidation of his later filed 16 case in this District, Case No. 2:18-cv-1677-RFB-BNW. 17 II. SCREENING THE AMENDED COMPLAINT 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable 20 claims and dismiss claims that are frivolous, malicious, file to state a claim on which relief may 21 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 22 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 23 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 24 668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain 25 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 26 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints 27 and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts 1 in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 2 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of material 4 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 5 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 6 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 7 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 8 A formulaic recitation of the elements of a cause of action is insufficient. Id. Further, a Court may 9 dismiss a claim as factually frivolous if its allegations are “clearly baseless, a category 10 encompassing allegations that are fanciful, fantastic, and delusional.” Denton v. Hernandez, 504 11 U.S. 25, 32–33 (1992) (internal citations and punctuation omitted). Unless it is clear the 12 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 13 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 14 States, 70 F.3d 1103, 1106 (9th Cir. 1995). Allegations of a pro se complaint are held to less 15 stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 16 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required after Twombly 17 and Iqbal). 18 In general, Plaintiff appears to allege that employees of the Nevada DMV concealed 19 evidence of a fraud perpetrated on African American youth regarding rental cars that allegedly 20 were offered for rent by Roadrunner, advertised on the website Craigslist and insured by Zurich. 21 He also alleges that several attorneys and Zurich Insurance Company were involved in a 22 conspiracy with the Nevada DMV employees due to their Jewish faith. He alleges that 23 Defendants misrepresented the availability of liability insurance coverage for short-term leases of 24 California rental cars in Las Vegas, Nevada. Plaintiff further alleges intricate facts regarding his 25 grandchildren’s involvement in a transaction with Roadrunner and his subsequent investigation of 26 that transaction. 27 Plaintiff’s Amended Complaint appears to attempt to assert the following claims: civil 1 Complaint is replete with various accusations, and it is quite difficult to discern exactly what 2 brings plaintiff into federal court. His complaint is rambling, nonsensical, filled with legal jargon, 3 and with vague references to state and federal laws. Dismissal on those grounds alone is 4 appropriate. Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short 5 and plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendants fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 7 550 U.S. at 555 (quotation and alteration omitted). Plaintiff's largely incomprehensible narrative 8 makes it nearly impossible for the Court to identify if he can state a plausible claim. Indeed, the 9 only possible federal cause of action is the civil conspiracy claim – to the extent that Plaintiff is 10 attempting to assert one under RICO. 11 Although it is not clear that the deficiencies identified can be cured, the Court will allow 12 Plaintiff an opportunity to file a second amended complaint to the extent he believes that he can 13 state a claim. If Plaintiff chooses to file a second amended complaint, the document must be 14 titled “Second Amended Complaint.” The second amended complaint must contain a short and 15 plain statement describing the underlying case, the defendant(s) involvement in the case, and the 16 approximate dates of its involvement. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of 17 Civil Procedure adopt a flexible pleading standard, Plaintiff still must give defendants fair notice 18 of his claims against them and his entitlement to relief. 19 Additionally, Plaintiff is advised that if he files a second amended complaint, the amended 20 complaint no longer serves any function in this case. As such, the second amended complaint 21 must be complete in and of itself without reference to prior pleadings or other documents. The 22 Court cannot refer to a prior pleading or other documents to make Plaintiff’s second amended 23 complaint complete. 24 III. CONSOLIDATION 25 Plaintiff requests that this case be consolidated with his later filed case, Case No. 2:18-cv- 26 1677-RFB-BNW. It appears as though he re-filed the same allegations in a subsequent case while 27 his objection to the prior recommended dismissal of this case was pending. As the two cases 1 appropriate. Therefore, the Court recommends that the subsequent case be closed and 2 consolidated into this case. 3 ORDER 4 IT IS THEREFORE ORDERED that the Amended Complaint (ECF No. 15) is 5 DISMISSED without prejudice for failure to state a claim upon which relief can be granted, with 6 leave to amend.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 WENDELL DWAYNE O’NEAL, Case No. 2:17-cv-03025-JAD-DJA 6 Plaintiff, 7 ORDER AND v. REPORT AND RECOMMENDATION 8 TERRI ALBERTSON, et al., 9 Defendants. 10 11 This matter is before the Court on pro se Plaintiff Wendell Dwayne O’Neal’s Amended 12 Complaint. (ECF No. 15). He was previously granted the ability to to proceed in forma pauperis 13 and his Complaint was dismissed with leave to amend. (ECF No. 13). He timely filed an 14 Amended Complaint, which the Court will now screen. Additionally, Plaintiff filed a Motion to 15 Consolidate (ECF No. 16) on November 14, 2019, which requests consolidation of his later filed 16 case in this District, Case No. 2:18-cv-1677-RFB-BNW. 17 II. SCREENING THE AMENDED COMPLAINT 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable 20 claims and dismiss claims that are frivolous, malicious, file to state a claim on which relief may 21 be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 22 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 23 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 24 668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain 25 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 26 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints 27 and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts 1 in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 2 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of material 4 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 5 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 6 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 7 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 8 A formulaic recitation of the elements of a cause of action is insufficient. Id. Further, a Court may 9 dismiss a claim as factually frivolous if its allegations are “clearly baseless, a category 10 encompassing allegations that are fanciful, fantastic, and delusional.” Denton v. Hernandez, 504 11 U.S. 25, 32–33 (1992) (internal citations and punctuation omitted). Unless it is clear the 12 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 13 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 14 States, 70 F.3d 1103, 1106 (9th Cir. 1995). Allegations of a pro se complaint are held to less 15 stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 16 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required after Twombly 17 and Iqbal). 18 In general, Plaintiff appears to allege that employees of the Nevada DMV concealed 19 evidence of a fraud perpetrated on African American youth regarding rental cars that allegedly 20 were offered for rent by Roadrunner, advertised on the website Craigslist and insured by Zurich. 21 He also alleges that several attorneys and Zurich Insurance Company were involved in a 22 conspiracy with the Nevada DMV employees due to their Jewish faith. He alleges that 23 Defendants misrepresented the availability of liability insurance coverage for short-term leases of 24 California rental cars in Las Vegas, Nevada. Plaintiff further alleges intricate facts regarding his 25 grandchildren’s involvement in a transaction with Roadrunner and his subsequent investigation of 26 that transaction. 27 Plaintiff’s Amended Complaint appears to attempt to assert the following claims: civil 1 Complaint is replete with various accusations, and it is quite difficult to discern exactly what 2 brings plaintiff into federal court. His complaint is rambling, nonsensical, filled with legal jargon, 3 and with vague references to state and federal laws. Dismissal on those grounds alone is 4 appropriate. Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short 5 and plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendants fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 7 550 U.S. at 555 (quotation and alteration omitted). Plaintiff's largely incomprehensible narrative 8 makes it nearly impossible for the Court to identify if he can state a plausible claim. Indeed, the 9 only possible federal cause of action is the civil conspiracy claim – to the extent that Plaintiff is 10 attempting to assert one under RICO. 11 Although it is not clear that the deficiencies identified can be cured, the Court will allow 12 Plaintiff an opportunity to file a second amended complaint to the extent he believes that he can 13 state a claim. If Plaintiff chooses to file a second amended complaint, the document must be 14 titled “Second Amended Complaint.” The second amended complaint must contain a short and 15 plain statement describing the underlying case, the defendant(s) involvement in the case, and the 16 approximate dates of its involvement. See Fed. R. Civ. P. 8(a)(2). Although the Federal Rules of 17 Civil Procedure adopt a flexible pleading standard, Plaintiff still must give defendants fair notice 18 of his claims against them and his entitlement to relief. 19 Additionally, Plaintiff is advised that if he files a second amended complaint, the amended 20 complaint no longer serves any function in this case. As such, the second amended complaint 21 must be complete in and of itself without reference to prior pleadings or other documents. The 22 Court cannot refer to a prior pleading or other documents to make Plaintiff’s second amended 23 complaint complete. 24 III. CONSOLIDATION 25 Plaintiff requests that this case be consolidated with his later filed case, Case No. 2:18-cv- 26 1677-RFB-BNW. It appears as though he re-filed the same allegations in a subsequent case while 27 his objection to the prior recommended dismissal of this case was pending. As the two cases 1 appropriate. Therefore, the Court recommends that the subsequent case be closed and 2 consolidated into this case. 3 ORDER 4 IT IS THEREFORE ORDERED that the Amended Complaint (ECF No. 15) is 5 DISMISSED without prejudice for failure to state a claim upon which relief can be granted, with 6 leave to amend. 7 IT IS FURTHER ORDERED that plaintiff shall have until February 3, 2020, to file a 8 second amended complaint. Failure to file a second an amended complaint will result in a 9 recommendation that this case be dismissed. 10 RECOMMENDATION 11 IT IS THEREFORE RECOMMENDED that Plaintiff’s Motion to Consolidate (ECF No. 12 16) be granted and the Clerk of the Court close Case No. 2:18-cv-1677-RFB-BNW. 13 NOTICE 14 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 15 in writing and filed with the Clerk of the Court within (14) days after service of this Notice. The 16 Supreme Court has held that the courts of appeal may determine that an appeal has been waived 17 due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 18 (1985), reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that (1) failure to file 19 objections within the specified time and (2) failure to properly address and brief the objectionable 20 issues waives the right to appeal the District Court’s order and/or appeal factual issues from the 21 order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi 22 Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 23 DATED: January 15, 2020.
24 DANIEL J. ALBREGTS 25 UNITED STATES MAGISTRATE JUDGE 26 27