ONeil v. Pasco County Sheriff

• Court: District Court, D. Nevada
• Decided: October 20, 2020
• Docket: 2:20-cv-00936
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Aimee O’Neil, Case No. 2:20-cv-00936-GMN-BNW 6 Plaintiff, 7 SCREENING ORDER AND REPORT v. AND RECOMMENDATION 8 Pasco County Sheriff, 9 Defendant. 10 11 12 Presently before the Court is pro-se Plaintiff Aimee O’Neil’s complaint. ECF No. 1-1. 13 This case arises out of Pasco County Sheriff’s (“Pasco’s”) allegedly illegal search of O’Neil’s 14 home in Pasco County, Florida, in 2000. Id. at 5. 15 O’Neil moves to proceed in forma pauperis. ECF No. 1. O’Neil submitted the affidavit 16 required by 28 U.S.C. § 1915(a), showing an inability to prepay fees or costs or give security for 17 them. Id. O’Neil’s request to proceed in forma pauperis, therefore, will be granted. The court now 18 screens O’Neil’s complaint (ECF No. 1-1) as required by 28 U.S.C. § 1915(e)(2). 19 I. ANALYSIS 20 A. Screening standard 21 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 22 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 23 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 24 granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 25 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 26 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 27 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 1 factual matter, accepted as true, to state a claim for relief that is plausible on its face.” See 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and 3 may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in 4 support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 5 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 6 In considering whether the complaint is sufficient to state a claim, all allegations of 7 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 8 Summit P’ ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 9 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 10 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 11 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 12 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 13 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 14 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 15 B. Screening the complaint 16 O’Neil brings this case under 42 U.S.C. § 1983 against Pasco. ECF No. 1-1 at 3. O’Neil 17 alleges that on December 23, 2000, Pasco arrived at her door with an unsigned search warrant and 18 removed her children in violation of the Fourth Amendment. Id. 1-1 at 4-6. O’Neil further alleges 19 that her due process rights under the Fourteenth Amendment were violated. Id. at 6. And O’Neil 20 alleges that she did not receive notice of a hearing to defend herself. Id. 21 O’Neil’s claims under Section 1983 are barred by the statute of limitations. “It is well- 22 established that claims brought under § 1983 borrow the forum state’s statute of limitations for 23 personal injury claims . . . .” Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 24 F.3d 1020, 1026 (9th Cir. 2007). Nevada’s personal injury statute of limitations is two years. 25 See NRS 11.190(4)(e); Howard v. Chronister, No. 72704, 2017 WL 4079073, at *1 (Nev. App. 26 Sept. 7, 2017). 27 Here, O’Neil alleges that Pasco conducted an illegal search on December 23, 2000, nearly 1 Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (a 2 || complaint may be dismissed when “the running of the statute is apparent on the face of the 3 || complaint.”). 4 I. CONCLUSION 5 IT IS THEREFORE ORDERED that O’Neil’s application to proceed in forma pauperis 6 || (ECF No. 1) is GRANTED. O’Neil will not be required to pay the filing fee in this action. O’Neil 7 || is permitted to maintain this action to conclusion without the necessity of prepayment of any 8 || additional fees or costs or the giving of a security for fees or costs. 9 IT IS FURTHER ORDERED that the clerk of court must file O’Neil’s complaint (ECF 10 |} No. 1-1). 11 IT IS RECOMMENDED that O’Neil’s complaint be DISMISSED with prejudice. 12 NOTICE 13 This report and recommendation is submitted to the United States district judge assigned 14 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 15 || may file a written objection supported by points and authorities within fourteen days of being 16 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 17 || objection may waive the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 18 |} 1153, 1157 (9th Cir. 1991). 19 DATED: October 20, 2020 “0 x Le 21 BRENDA WEKSLER—~—CS UNITED STATES MAGISTRATE JUDGE

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