Tran v. City of Las Vegas

• Court: District Court, D. Nevada
• Decided: February 24, 2023
• Docket: 2:22-cv-00203
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Hoang Kim Tran, Case No. 2:22-cv-00203-ART-BNW

5 Plaintiff, ORDER 6 v.

7 City of Las Vegas, et.al.,

8 Defendants.

9 10 Pro se plaintiff filed documents initiating this case on February 2, 2022. ECF No. 1. The 11 Court screened the complaint and issued a Report and Recommendation (R&R) on August 30, 12 2022. The R&R was accepted and adopted in full on September 23, 2022. ECF No. 21. The 13 deadline for Plaintiff to file a First Amended Complaint (FAC) was December 1, 2022. Id. 14 Plaintiff filed the FAC on October 7, 2022. ECF No. 22. The Court now screens Plaintiff’s 15 complaint. 16 I. ANALYSIS 17 A. Screening Standard 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 claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 21 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, 668 24 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 25 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 26 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 27 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 1 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2 2014) (quoting Iqbal, 556 U.S. at 678). 3 In considering whether the complaint is sufficient to state a claim, all allegations of 4 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 5 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 6 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 7 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 8 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. But 9 unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 10 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 11 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 12 B. Screening the Complaint 13 Here, even liberally construing the amended complaint in Tran’s favor, it fails to state a 14 claim upon which relief can be granted. Tran’s handwriting is mostly illegible, making it 15 impossible for the Court decipher all his allegations. In turn, the Court cannot evaluate whether Plaintiff states any claims for relief. The Court noted this issue before. See ECF Nos. 16 14 and 17. The Court therefore will dismiss the FAC without prejudice for Tran to file a 17 Second Amended Complaint. If Tran chooses to file a Second Amended Complaint, it must be 18 clearly printed or typed. 19 The Second Amended Complaint must be complete in and of itself. If Plaintiff chooses to 20 file an amended complaint, he is advised that an amended complaint supersedes the original 21 complaint and, thus, the amended complaint must be complete by itself. See Hal Roach Studios, 22 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact 23 that a party was named in the original complaint is irrelevant; an amended pleading supersedes 24 the original”). Plaintiff’s amended complaint must contain all claims, defendants, and factual 25 allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file his 26 amended complaint on this Court’s approved form, which the Clerk of Court will send Plaintiff. 27 1 II. CONCLUSION 2 IT IS THEREFORE ORDERED that Plaintiff’s First Amended Complaint (ECF No. 22) 3 is dismissed without prejudice and with leave to amend. 4 IT IS FURTHER ORDERED that the Clerk of Court shall mail Plaintiff a copy of the 5 prisoner pro se form complaint. 6 IT IS FURTHER ORDERED that if Plaintiff chooses to amend his complaint, he must do 7 so by March 24, 2023. Failure to comply with this order will result in a recommendation that this 8 case be dismissed. 9 10 DATED: February 24, 2023 11 BRENDA WEKSLER 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27