1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 LARRY RICHARDS, Case No.: 3:22-cv-00154-MMD-CSD
4 Plaintiff Order
5 v. Re: ECF Nos. 1, 1-1, 2, 3, 4, 5
6 FIRST RESPONSE TOWING, et al.,
7 Defendants
8 9 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 1) and pro 10 se complaint (ECF No. 1-1). He has also filed the following motions: (1) an ex parte motion to 11 be mailed court orders at two separate addresses (ECF No. 2); (2) an ex parte motion for 12 enlargement of time to complete the complaint (ECF No. 3); (3) an ex parte motion to file by 13 facsimile transfer and to appear by telephone conference (ECF No. 4); (4) an ex parte motion for 14 preliminary injunction and temporary restraining order (ECF No. 5.) 15 I. IFP APPLICATION 16 A person may be granted permission to proceed IFP if the person “submits an affidavit 17 that includes a statement of all assets such [person] possesses [and] that the person is unable to 18 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 19 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 20 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 21 all actions filed IFP, not just prisoner actions). 22 In addition, the Local Rules of Practice for the District of Nevada provide: “Any person 23 who is unable to prepay the fees in a civil case may apply to the court for authority to proceed 1 [IFP]. The application must be made on the form provided by the court and must include a 2 financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 3 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 4 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)
5 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 6 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 7 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 8 therefore, the application will be granted. 9 II. SCREENING 10 A. Standard 11 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 12 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 13 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 14 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii).
15 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 16 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 17 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 18 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 20 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 21 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 22 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 23 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 1 The court must accept as true the allegations, construe the pleadings in the light most 2 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 3 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 4 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9
5 (1980) (internal quotation marks and citation omitted). 6 A complaint must contain more than a “formulaic recitation of the elements of a cause of 7 action,” it must contain factual allegations sufficient to “raise a right to relief above the 8 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 9 must contain something more … than … a statement of facts that merely creates a suspicion [of] 10 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 11 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 12 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 13 A dismissal should not be without leave to amend unless it is clear from the face of the 14 complaint that the action is frivolous and could not be amended to state a federal claim, or the
15 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 16 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 17 B. Plaintiff’s Complaint 18 Plaintiff brings this action pursuant to the Racketeer Influenced and Corrupt Practices Act 19 (RICO), 18 U.S.C. § 1961, et al. Plaintiff sues the following defendants: Unknown owner of the 20 Tow Truck Company, a division of First Response Towing (located in Reno and Las Vegas, 21 Nevada); unknown employees of the Tow Truck Company; The Town Truck Company (both its 22 Reno and Las Vegas divisions); First Response Towing; 36 Doe defendants; two unidentified 23 Reno Police Department Officers; and the City of Reno Police Department. 1 Plaintiff alleges all Defendants are actively stealing Plaintiff’s car, his private 2 possessions, his medical equipment, and they denied him access to his car. He claims they are 3 driving up their costs so they can obtain his car for free. Plaintiff claims he was attempting to 4 buy his car back out of storage, and he was arrested. He further alleges conversion of his
5 property. 6 “Although the RICO statute was originally enacted to combat organized crime, ‘it has 7 become a tool for everyday fraud cases brought against respected and legitimate enterprises.’” 8 Painters and Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals, 9 943 F.3d 1243
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 LARRY RICHARDS, Case No.: 3:22-cv-00154-MMD-CSD
4 Plaintiff Order
5 v. Re: ECF Nos. 1, 1-1, 2, 3, 4, 5
6 FIRST RESPONSE TOWING, et al.,
7 Defendants
8 9 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 1) and pro 10 se complaint (ECF No. 1-1). He has also filed the following motions: (1) an ex parte motion to 11 be mailed court orders at two separate addresses (ECF No. 2); (2) an ex parte motion for 12 enlargement of time to complete the complaint (ECF No. 3); (3) an ex parte motion to file by 13 facsimile transfer and to appear by telephone conference (ECF No. 4); (4) an ex parte motion for 14 preliminary injunction and temporary restraining order (ECF No. 5.) 15 I. IFP APPLICATION 16 A person may be granted permission to proceed IFP if the person “submits an affidavit 17 that includes a statement of all assets such [person] possesses [and] that the person is unable to 18 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 19 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez 20 v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to 21 all actions filed IFP, not just prisoner actions). 22 In addition, the Local Rules of Practice for the District of Nevada provide: “Any person 23 who is unable to prepay the fees in a civil case may apply to the court for authority to proceed 1 [IFP]. The application must be made on the form provided by the court and must include a 2 financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 3 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 4 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)
5 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 6 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 7 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 8 therefore, the application will be granted. 9 II. SCREENING 10 A. Standard 11 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 12 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 13 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 14 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii).
15 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 16 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) 17 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 18 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 19 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 20 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 21 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 22 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 23 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 1 The court must accept as true the allegations, construe the pleadings in the light most 2 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 3 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 4 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9
5 (1980) (internal quotation marks and citation omitted). 6 A complaint must contain more than a “formulaic recitation of the elements of a cause of 7 action,” it must contain factual allegations sufficient to “raise a right to relief above the 8 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 9 must contain something more … than … a statement of facts that merely creates a suspicion [of] 10 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 11 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 12 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 13 A dismissal should not be without leave to amend unless it is clear from the face of the 14 complaint that the action is frivolous and could not be amended to state a federal claim, or the
15 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 16 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 17 B. Plaintiff’s Complaint 18 Plaintiff brings this action pursuant to the Racketeer Influenced and Corrupt Practices Act 19 (RICO), 18 U.S.C. § 1961, et al. Plaintiff sues the following defendants: Unknown owner of the 20 Tow Truck Company, a division of First Response Towing (located in Reno and Las Vegas, 21 Nevada); unknown employees of the Tow Truck Company; The Town Truck Company (both its 22 Reno and Las Vegas divisions); First Response Towing; 36 Doe defendants; two unidentified 23 Reno Police Department Officers; and the City of Reno Police Department. 1 Plaintiff alleges all Defendants are actively stealing Plaintiff’s car, his private 2 possessions, his medical equipment, and they denied him access to his car. He claims they are 3 driving up their costs so they can obtain his car for free. Plaintiff claims he was attempting to 4 buy his car back out of storage, and he was arrested. He further alleges conversion of his
5 property. 6 “Although the RICO statute was originally enacted to combat organized crime, ‘it has 7 become a tool for everyday fraud cases brought against respected and legitimate enterprises.’” 8 Painters and Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals, 9 943 F.3d 1243, 1248 (9th Cir. 2019) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 10 (1985)). “Broadly speaking, there are two parts to a civil RICO claim. The civil RICO violation 11 is defined under 18 U.S.C. § 1962, while “RICO standing” is defined under 18 U.S.C. §1964(c).” 12 The elements of a civil Racketeer Influenced and Corrupt Organizations Act (RICO) 13 claim are: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity 14 (known as “predicate acts”) (5) causing injury to the plaintiff’s “business or property.” 18 U.S.C.
15 § 1964(c), 1962(c); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). 16 “Racketeering activity” is any act indictable under several provisions of Title 18 and Title 17 29 of the United States Code and the Currency and Foreign Transactions Reporting Act and 18 Immigration and Nationality Act. See 18 U.S.C. § 1961. 19 Plaintiff does not allege conduct that constitutes “racketeering activity” under RICO. Nor 20 does he allege a “pattern” of “racketeering activity.” 21 While it is possible Plaintiff could allege a State law tort claim of conversion, he does not 22 currently include specific factual allegations with respect to each defendant. Moreover, there 23 must be a basis for the court to exercise jurisdiction over a State law claim. Without a cognizable 1 RICO claim, there is no federal question jurisdiction. There is no diversity jurisdiction because 2 Plaintiff alleges that he and the Defendants all reside in Nevada. 3 As a result, Plaintiff’s complaint will be dismissed, but he will be given leave to amend to 4 attempt to assert cognizable claims against each defendant.
5 III. OTHER MOTIONS 6 A. Ex Parte Motions 7 Preliminarily, Plaintiff titles all of his filings as “ex parte” motions. An ex parte motion is 8 a motion that is filed with the court, but is not served on the opposing or other parties. An ex 9 parte motion must articulate the rule that permits ex parte filing and explain why it is filed on an 10 ex parte basis. LR IA 7-2(a), (b). No other parties have been served in this case yet and Plaintiff 11 does not otherwise articulate a basis for filing his motions ex parte. In the future Plaintiff shall 12 comply with Local Rule IA 7-2 if he seeks to file a motion ex parte. 13 B. Motion to be Mailed Court Orders to Two Separate Addresses (ECF No. 2) 14 In this motion, Plaintiff states that he is homeless and requests that the court send all
15 orders to his address in Carson City that is on file, and that a “backup” copy be sent to an 16 attorney in San Francisco. The attorney in San Francisco has not entered an appearance on 17 Plaintiff’s behalf. Therefore, Plaintiff’s motion to have the court send all orders to the attorney in 18 San Francisco is denied. 19 C. Motion for Enlargement of Time to Complete the Complaint (ECF No. 3) 20 The court is dismissing Plaintiff’s complaint with leave to file an amended complaint; 21 therefore, this motion is denied as moot. 22 23 1 D. Motion to File by Facsimile and Appear by Telephone Conference (ECF No. 4) 2 Plaintiff states that he is medically fragile, and seeks an order allowing him to file by 3 facsimile. He also promises to appear in person, if possible, but his medical condition could 4 prohibit this, and so he seeks an order to appear by telephone.
5 Filing by facsimile is not an option within the District of Nevada. Therefore, Plaintiff’s 6 motion is denied. Under Second Amended Temporary General Order 2020-04, documents that 7 cannot be filed electronically via the court’s electronic filing system, CM/ECF, may also be 8 submitted by e-mail or by regular mail. If filing by email, documents should be sent to 9 docketing@nvd.uscourts.gov. Additional information about filing and receiving notices/delivery 10 of documents by email can be found on the court’s website at https://www.nvd.uscourts.gov/self- 11 help/. 12 Plaintiff’s motion for a blanket order that he be allowed to appear telephonically is 13 denied. The court typically allows appearances by telephone or Zoom videoconference; however, 14 there may be occasions where a personal appearance is required. These decisions are better
15 determined on a case-by-case basis and not through a blanket order. 16 E. Motion for Preliminary Injunction and Emergency Motion for Temporary Restraining 17 Order (ECF No. 5) 18 Plaintiff’s motion is denied as moot because Plaintiff’s complaint is being dismissed with 19 leave to amend and there is currently no operative complaint. Moreover, a motion for 20 preliminary injunction/temporary restraining order must demonstrate that the plaintiff: (1) is 21 likely to succeed on the merits of his claims; (2) is likely to suffer irreparable harm in the 22 absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is 23 the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Plaintiff’s motion does not address these factors. 3 IV. CONCLUSION 4 (1) Plaintiff's IFP application (ECF No. 1) is GRANTED. Plaintiff is permitted to maintain this action without prepaying the filing fee. 6 (2) The Clerk shall FILE the complaint (ECF No. 1-1); however, the complaint is 7| DISMISSED WITH LEAVE TO AMEND. Plaintiff has 30 DAYS from the date of this Order 8|| to file an amended complaint correcting the deficiencies noted above. The amended complaint must be complete in and of itself without referring or incorporating by reference any previous 10|| complaint. Any allegations, parties, or requests for relief from a prior complaint that are not 11]| carried forwarded in the amended complaint will no longer be before the court. Plaintiff shall 12|| clearly title the amended pleading as “AMENDED COMPLAINT.” If Plaintiff fails to file an 13]| amended complaint within the 30 days, the action may be dismissed. 14 (3) Plaintiff's motions (ECF Nos. 2, 3, 4, 5) are DENIED for the reasons set forth herein. 15 16) IT IS SO ORDERED. 17|| Dated: June 8, 2022 ce Ss 18 oy Craig S. Denney 19 United States Magistrate Judge 20 21 22 23