1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 ANTHONY MICHAEL GIOIOSA, SR., Case No. 2:20-cv-01805-GMN-VCF

4 Plaintiff SCREENING ORDER

5 v.

6 JAMES DZURENDA et al.,

7 Defendants

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

11 and has filed an application to proceed in forma pauperis. (ECF Nos. 1, 1-1). The Court 12 now screens Plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A. 13 I. IN FORMA PAUPERIS APPLICATION 14 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 1). Based 15 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 16 able to pay an initial installment payment toward the full filing fee pursuant to

1915. Plaintiff will, however, be required to make monthly payments toward the full 18 $350.00 filing fee when he has funds available. 19 II. SCREENING STANDARD 20 Federal courts must conduct a preliminary screening in any case in which an 21 incarcerated person seeks redress from a governmental entity or officer or employee of 22 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 23 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 24 claim upon which relief may be granted, or seek monetary relief from a defendant who is 25 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 26 liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 27 To state a claim under

, a plaintiff must allege two essential elements: 28 (1) the violation of a right secured by the Constitution or laws of the United States, and 1 (2) that the alleged violation was committed by a person acting under color of state law. 2 See West v. Atkins,

(1988). 3 In addition to the screening requirements under § 1915A, pursuant to the Prison 4 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 5 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 6 to state a claim on which relief may be granted, or seeks monetary relief against a 7 defendant who is immune from such relief.”

(e)(2). Dismissal of a 8 complaint for failure to state a claim upon which relief can be granted is provided for in 9 Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 10 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 11 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 12 the complaint with directions as to curing its deficiencies, unless it is clear from the face 13 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 14 United States,

(9th Cir. 1995). 15 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 16 Chappel v. Lab. Corp. of Am.,

(9th Cir. 2000). Dismissal for failure to 17 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 18 support of the claim that would entitle him or her to relief. See Morley v. Walker,

756, 759 (9th Cir. 1999). In making this determination, the court takes as true all 20 allegations of material fact stated in the complaint, and the court construes them in the 21 light most favorable to the plaintiff. See Warshaw v. Xoma Corp.,

(9th 22 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 23 formal pleadings drafted by lawyers. See Hughes v. Rowe,

(1980). While 24 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 25 must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550

(2007). A formulaic recitation of the elements of a cause of action is 27 insufficient.

28 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 1 that, because they are no more than mere conclusions, are not entitled to the assumption 2 of truth.” Ashcroft v. Iqbal,

(2009). “While legal conclusions can provide 3 the framework of a complaint, they must be supported with factual allegations.”

“When 4 there are well-pleaded factual allegations, a court should assume their veracity and then 5 determine whether they plausibly give rise to an entitlement to relief.”

“Determining 6 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 7 requires the reviewing court to draw on its judicial experience and common sense.”

8 Finally, all or part of a complaint filed by an incarcerated person may therefore be 9 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 10 This includes claims based on legal conclusions that are untenable (e.g., claims against 11 defendants who are immune from suit or claims of infringement of a legal interest which 12 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 13 fantastic or delusional scenarios). See Neitzke v. Williams,

, 327–28 (1989); 14 see also McKeever v. Block,

(9th Cir. 1991). 15 III. SCREENING OF COMPLAINT 16 The Court dismisses Plaintiff’s complaint in its entirety, with prejudice, as 17 malicious. On September 2, 2020, Plaintiff, proceeding in forma pauperis, initiated a 18 federal lawsuit against Defendants James Dzurenda and Dennis Ware in Gioiosa v. 19 Dzurenda et al, 2:20-cv-01618-APG-DJA.1 On September 28, 2020, Plaintiff, proceeding 20 in forma pauperis, initiated the instant federal lawsuit against Defendants James 21 Dzurenda and Dennis Ware by filing the exact same complaint that he filed in the previous 22 lawsuit. (See 2:20-cv-01805-GMN-VCF at ECF No. 1). 23 The Court notes that duplicative litigation by a plaintiff proceeding in forma 24 pauperis may be dismissed as malicious under

(e). See Cato v. United 25 States,

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

, 26 1021 (5th Cir. 1988) (holding that repetitious litigation of virtually identical causes of action

27 1 On June 21, 2021, U.S. District Judge Andrew Gordon issued a screening order 28 in that case granting Plaintiff leave to amend. (See 2:20-cv-01618-APG-DJA at ECF No. 7). 1 is subject to dismissal as malicious)); Pittman v. Moore,

(5th 2 Cir. 1993) (holding that it is malicious for a “pauper” to file a lawsuit that duplicates 3 allegations of another pending federal lawsuit by the same plaintiff). As such, the Court 4 dismisses the complaint, with prejudice, as malicious. The Court further finds that this 5 dismissal constitutes a “strike” under

(g). See

(g) 6 (stating that an action dismissed on grounds that the action is frivolous, malicious, or fails 7 to state a claim constitutes a “strike” under § 1915(g)). 8 IV. CONCLUSION 9 It is ordered that Plaintiff's application to proceed in forma pauperis (ECF No. 1) 10 without having to prepay the full filing fee is granted. Plaintiff will not be required to pay 11 an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to 28

, as amended by the Prison Litigation Reform Act. The movant herein is 13 permitted to maintain this action to conclusion without the necessity of prepayment of fees 14 or costs or the giving of security therefor. This order granting in forma pauperis status 15 will not extend to the issuance and/or service of subpoenas at government expense. 16 It is further ordered that, pursuant to

, as amended by the Prison 17 Litigation Reform Act, the Nevada Department of Corrections will forward payments from 18 the account of Anthony Michael Gioiosa, Sr., #1170052 to the Clerk of the United States 19 District Court, District of Nevada, 20% of the preceding month's deposits (in months that 20 the account exceeds $10.00) until the full $350 filing fee has been paid for this action. 21 The Clerk of the Court will send a copy of this order to the Finance Division of the Clerk’s 22 Office. The Clerk will send a copy of this order to the attention of Chief of Inmate 23 Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 24 89702. 25 It is further ordered that, even if this action is dismissed, or is otherwise 26 unsuccessful, the full filing fee will still be due, pursuant to

, as amended 27 by the Prison Litigation Reform Act. 28 It is further ordered that the Clerk of the Court file the complaint (ECF No. 1-1). 1 It is further ordered that the complaint (ECF No. 1-1) is dismissed in its entirety, 2 with prejudice, as malicious. This dismissal constitutes a “strike” under

1915(g). 4 It is further ordered that the Clerk of the Court close the case and enter judgment 5 accordingly. 6 It is further ordered that this Court certifies that any in forma pauperis appeal from 7 this order would not be taken “in good faith” pursuant to

(a)(3). 8 29 9 DATED THIS _____ day of June 2021. 10

11 Gloria M. Navarro, Judge United States District Court 12

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