1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 COREY JOHNSON, Case No. 2:20-cv-01647-RFB-EJY

4 Plaintiff, SCREENING ORDER

5 v.

6 STATE OF NEVADA DEPT OF PAROLE AND PROBATION, et al., 7 Defendants.

8 9 Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), 10 has submitted a civil rights complaint under

and has filed two 11 applications to proceed in forma pauperis and a petition for a preliminary injunction. (ECF 12 Nos. 1-1, 4, 6, 9.) The Court will screen Plaintiff’s civil rights complaint pursuant to 28 13 U.S.C. § 1915A. 14 I. SCREENING STANDARD 15 Federal courts must conduct a preliminary screening in any case in which a 16 prisoner seeks redress from a governmental entity or officer or employee of a 17 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 18 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 19 upon which relief may be granted or seek monetary relief from a defendant who is immune 20 from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be 21 liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 22 To state a claim under

, a plaintiff must allege two essential elements: 23 (1) the violation of a right secured by the Constitution or laws of the United States, and 24 (2) that the alleged violation was committed by a person acting under color of state law. 25 See West v. Atkins,

(1988). 26 In addition to the screening requirements under § 1915A, pursuant to the Prison 27 Litigation Reform Act (PLRA), a federal court must dismiss a prisoner’s claim, if “the allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a 1 claim on which relief may be granted, or seeks monetary relief against a defendant who 2 is immune from such relief.”

(e)(2). Dismissal of a complaint for failure 3 to state a claim upon which relief can be granted is provided for in Federal Rule of Civil 4 Procedure 12(b)(6), and the court applies the same standard under § 1915 when 5 reviewing the adequacy of a complaint or an amended complaint. When a court 6 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 7 complaint with directions as to curing its deficiencies, unless it is clear from the face of 8 the complaint that the deficiencies could not be cured by amendment. See Cato v. United 9 States,

(9th Cir. 1995). 10 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 11 Chappel v. Lab. Corp. of America,

(9th Cir. 2000). Dismissal for failure 12 to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 13 support of the claim that would entitle him or her to relief. See Morley v. Walker,

(9th Cir. 1999). In making this determination, the court takes as true all 15 allegations of material fact stated in the complaint, and the court construes them in the 16 light most favorable to the plaintiff. See Warshaw v. Xoma Corp.,

(9th 17 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 18 formal pleadings drafted by lawyers. See Hughes v. Rowe,

(1980). While 19 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 20 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 21

(2007). A formulaic recitation of the elements of a cause of action is 22 insufficient.

23 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 24 that, because they are no more than mere conclusions, are not entitled to the assumption 25 of truth.” Ashcroft v. Iqbal,

(2009). “While legal conclusions can 26 provide the framework of a complaint, they must be supported with factual allegations.” 27

“When there are well-pleaded factual allegations, a court should assume their veracity 1 “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 2 specific task that requires the reviewing court to draw on its judicial experience and 3 common sense.”

4 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed 5 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This 6 includes claims based on legal conclusions that are untenable (e.g., claims against 7 defendants who are immune from suit or claims of infringement of a legal interest which 8 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 9 fantastic or delusional scenarios). See Neitzke v. Williams,

(1989); 10 see also McKeever v. Block,

(9th Cir. 1991). 11 II. SCREENING OF COMPLAINT 12 Plaintiff filed the complaint in this action on September 4, 2020. The complaint is 13 an exact copy of a complaint that Plaintiff had previously filed on September 2, 2020. 14 Compare ECF No. 1-1 with Johnson v. State of Nevada Dept Parole & Probation, 2:20- 15 CV-01627-APG-VCF at ECF No. 1-1. Plaintiff also filed application to proceed in forma 16 pauperis in both cases. 17 Duplicative litigation by a plaintiff proceeding in forma pauperis may be dismissed 18 as malicious under

(e). See Cato v. United States,

, 1105 19 n.2 (9th Cir. 1995) (citing Bailey v. Johnson,

(5th Cir. 1988) (holding 20 that repetitious litigation of virtually identical causes of action is subject to dismissal as 21 malicious)); Pittman v. Moore,

(5th Cir. 1993) (holding that it is 22 malicious for a “pauper” to file a lawsuit that duplicates allegations of another pending 23 federal lawsuit by the same plaintiff). 24 The complaint in this case is not only similar, but an exact copy of the complaint 25 filed in the earlier case. As such, the Court dismisses the complaint as malicious. The 26 case is dismissed with prejudice, as amendment would be futile. Plaintiff’s applications 27 to proceed in forma pauperis (ECF Nos. 4, 6) and his motion for a preliminary injunction 1/| Ill. ©CONCLUSION 2 For the foregoing reasons, it is ordered that Plaintiff's applications to proceed in 3|| forma pauperis (ECF Nos. 4, 6) are denied as moot. 4 It is further ordered that Plaintiff's motion for a preliminary injunction (ECF No. 9) 5|| is denied as moot. 6 It is further ordered that the Clerk of the Court file the complaint (ECF No. 1-1) and 7|| send Plaintiff a courtesy copy of the complaint. 8 It is further ordered that the complaint is dismissed in its entirety as malicious. The 9|| case is dismissed with prejudice, as amendment would be futile. 10 It is further ordered that this Court certifies that any in forma pauperis appeal from || this order would not be taken “in good faith” under

(a)(3). 12 It is further ordered that the Clerk of the Court close this case and enter judgment accordingly. notice of appearance. 15 16 DATED: February 1, 2021.

49 United States □ t Court

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