Padilla v. Kemper

• Court: District Court, D. Nevada
• Decided: April 17, 2024
• Docket: 2:24-cv-00665
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Johnny N. Padilla, Case No. 2:24-cv-00665-GMN-DJA 6 Plaintiff, 7 Order v. 8 Kenith Kemper, 9 Defendant. 10 11 Under 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested 12 authority to proceed in forma pauperis. (ECF No. 1). Plaintiff also submitted a complaint. (ECF 13 No. 1 at 2-4, 6); (ECF No. 1-1). Because the Court finds that Plaintiff’s application is complete, 14 it grants his application to proceed in forma pauperis. Because the Court finds that Plaintiff has 15 not stated a claim upon which relief can be granted, the Court dismisses his complaint without 16 prejudice. 17 I. In forma pauperis application. 18 Plaintiff filed the affidavit required by § 1915(a). (ECF No. 1). Plaintiff has shown an 19 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed 20 in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 21 Plaintiff’s complaint. 22 II. Legal standard for screening. 23 Upon granting an application to proceed in forma pauperis, courts additionally screen the 24 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 25 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 27 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend 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 4 complaint for failure to state a claim upon which relief can be granted. Review under Rule 5 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 6 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 7 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 8 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 9 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 10 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 11 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 12 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 13 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 14 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 15 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 16 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 17 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 18 construction of pro se pleadings is required after Twombly and Iqbal). 19 Federal courts are courts of limited jurisdiction and possess only that power authorized by 20 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 21 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 22 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 23 federal law creates the cause of action or where the vindication of a right under state law 24 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 25 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 26 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 27 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 1 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 2 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 3 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 4 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 5 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 6 III. Screening Plaintiff’s complaint. 7 Plaintiff’s allegations generally describe Defendant Kenith Kemper, an employee of the 8 Federal Bureau of Investigation and Plaintiff’s neighbor, stalking Plaintiff. (ECF No. 1 at 2-4, 6); 9 (ECF No. 1-1 at 1-13). Plaintiff generally alleges that he saw Defendant’s footprints, that 10 Plaintiff has been “run off the road,” that Defendant said he “was going to stab [Plaintiff] in the 11 face,” that Defendant gave Plaintiff a dirty look, that Defendant somehow forced Plaintiff to 12 move, that Defendant was “creeping around” Plaintiff’s house, and that Defendant has recruited 13 locals in three states to follow Plaintiff’s social media. However, Plaintiff does not provide the 14 dates on which the stalking behavior occurred or identify the legal basis for the claims he brings. 15 Plaintiff also fails to identify the basis for this Court’s jurisdiction over his claims other than 16 checking the box for federal question jurisdiction and partially filling out the section for diversity 17 jurisdiction. (ECF No. 1 at 2). The Court thus dismisses Plaintiff’s complaint without prejudice 18 and with leave to amend. 19 20 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 21 pauperis (ECF No. 1) is granted. Plaintiff shall not be required to pre-pay the filing fee. 22 Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of 23 any additional fees or costs or the giving of a security therefor. This order granting leave to 24 proceed in forma pauperis shall not extend to the issuance and/or service of subpoenas at 25 government expense. 26 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff’s 27 complaint (ECF No. 1 at 2-4, 6) (ECF No. 1-1) on the docket but shall not issue summons. 1 IT IS FURTHER ORDERED that the complaint (ECF No. 1 at 2-4, 6) (ECF No. 1-1) is 2 dismissed without prejudice for failure to state a claim upon which relief can be granted, with 3 leave to amend. Plaintiff will have until May 17, 2024, to file an amended complaint if the noted 4 deficiencies can be corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed 5 that the Court cannot refer to a prior pleading (i.e., the original complaint) to make the amended 6 complaint complete. This is because, generally, an amended complaint supersedes the original 7 complaint. Local Rule 15-1(a) requires that an amended complaint be complete without reference 8 to any prior pleading. Once a plaintiff files an amended complaint, the original complaint no 9 longer serves any function in the case. Therefore, in an amended complaint, as in an original 10 complaint, each claim and the involvement of each Defendant must be sufficiently alleged. 11 Failure to comply with this order will result in the recommended dismissal of this case. 12 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send Plaintiff 13 a copy of the form Complaint for a Civil Case that can be found at 14 https://www.uscourts.gov/forms/pro-se-forms/complaint-civil-case. Plaintiff may use this form to 15 draft his amended complaint. 16 17 DATED: April 17, 2024 18 DANIEL J. ALBREGTS 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27