1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CRISTIAN GARCIA, Case No.: 3:23-cv-00308-ART-CSD

4 Plaintiff Order

5 v. Re: ECF Nos. 1. 1-1

6 SPARKS POLICE DEPARTMENT OFFICER J. TAVCAR, 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). 11 I. IFP APPLICATION 12 A person may be granted permission to proceed IFP if the person “submits an affidavit 13 that includes a statement of all assets such [person] possesses [and] that the person is unable to 14 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 15 or appeal and affiant’s belief that the person is entitled to redress.”

(a)(1); Lopez 16 v. Smith,

(9th Cir. 2000) (en banc) (stating that

applies to 17 all actions filed IFP, not just prisoner actions). 18 The Local Rules of Practice for the District of Nevada provide: “Any person who is 19 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 20 The application must be made on the form provided by the court and must include a financial 21 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 22 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 23 particularity, definiteness and certainty.” U.S. v. McQuade,

(9th Cir. 1981) 1 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 2 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co.,

(1948). 3 A review of the application to proceed IFP reveals Plaintiff cannot pay the filing fee; 4 therefore, the application is granted.

5 II. SCREENING 6 A. Standard 7 “[T]he court shall dismiss the case at any time if the court determines that-- (A) the 8 allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails 9 to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a 10 defendant who is immune from such relief.”

(e)(2)(A), (B)(i)-(iii). 11 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 12 provided for in Federal Rule of Civil Procedure 12(b)(6), and

(e)(2)(B)(ii) 13 tracks that language. As such, when reviewing the adequacy of a complaint under this statute, the 14 court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668

(9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to 16 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 17 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under 18 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 19

(9th Cir. 2000) (citation omitted). 20 The court must accept as true the allegations, construe the pleadings in the light most 21 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 22

(1969) (citations omitted). Allegations in pro se complaints are “held to less 23 1 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe,

, 9 2 (1980) (internal quotation marks and citation omitted). 3 A complaint must contain more than a “formulaic recitation of the elements of a cause of 4 action,” it must contain factual allegations sufficient to “raise a right to relief above the

5 speculative level.” Bell Atlantic Corp. v. Twombly,

(2007). “The pleading 6 must contain something more … than … a statement of facts that merely creates a suspicion [of] 7 a legally cognizable right of action.”

(citation and quotation marks omitted). At a minimum, a 8 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.”

at 9 570; see also Ashcroft v. Iqbal,

(2009). 10 A dismissal should not be without leave to amend unless it is clear from the face of the 11 complaint that the action is frivolous and could not be amended to state a federal claim, or the 12 district court lacks subject matter jurisdiction over the action. See Cato v. United States,

1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe,

(9th Cir. 1990). 14 B. Plaintiff’s Complaint

15 Plaintiff’s complaint names as defendants Sparks Police Officers J. Tavcar, Eddie, and 16 John Doe #2. He alleges that on June 10, 2023, he went to the scene, and told officers he was his 17 sister’s ride. He alleges officers yelled at him, stating he was obstructing as he waited by his car. 18 His sister’s ex-boyfriend came out, and he asked how it was going and he pointed to his car, and 19 Plaintiff responded, “that[’s] messed up” and indicated he was leaving. At that point, Officer J. 20 Tavcar and John Doe #2 came and attacked him while he was trying to leave by slamming him to 21 the ground. They left his phone and arrested Plaintiff. He includes as exhibits to his complaint 22 photos of abrasions on his body. 23 1 Liberally construing this pro se Plaintiff’s allegations, the court finds he states a colorable 2 claim for excessive force under the Fourth Amendment against Officer Tavcar and John Doe #2. 3 See Graham v. Connor,

(1989) (Claims of excessive force during an arrest or 4 other seizure of a free citizen are evaluated under the Fourth Amendment and apply an "objective

5 reasonableness" standard.). Although the use of “Doe” to identify a defendant is not favored, 6 flexibility is allowed in some cases where the identity of the parties will not be known prior to 7 filing a complaint but can be subsequently determined through discovery. Gillespie v. Civiletti, 8

(9th Cir. 1980). If the true identity of John Doe #2 comes to light during 9 discovery, Plaintiff may move to amend his complaint to assert claims against that defendant at 10 that time, provided the motion for leave to amend is filed within the parameters of any operative 11 scheduling order deadline. 12 Plaintiff does not include any allegations about “Officer Eddie.” However, Plaintiff will 13 be given leave to amend to attempt to assert a claim against Officer Eddie. 14 III. CONCLUSION

15 (1) Plaintiff’s IFP application (ECF No. 1) is GRANTED. 16 (2) The Clerk shall FILE the Complaint (ECF No. 1-1). 17 (3) The Complaint shall PROCEED with his Fourth Amendment excessive force claim 18 against Officer Tavcar and John Doe #2. If the true identity of John Doe #2 comes to light during 19 discovery, Plaintiff may move to amend his complaint to assert claims against that defendant at 20 that time, provided that the motion for leave to amend is filed within the parameters of any 21 operative scheduling order deadline. 22 (4) Plaintiff’s Fourth Amendment claim against Officer Eddie is DISMISSED WITH 23 LEAVE TO AMEND. Plaintiff has 30 days from the date of this Order, to file an amended 1 complaint correcting the deficiencies noted above with respect to Officer Eddie. The amended 2 complaint must be complete in and of itself without referring or incorporating by reference any 3 previous complaint. Any allegations, parties, or requests for relief from a prior complaint that are 4 not carried forwarded in the amended complaint will no longer be before the court. Plaintiff shall

5 clearly denote that the complaint is his amended complaint. If Plaintiff fails to file an amended 6 complaint within the 30 days, the action will proceed only with the Fourth Amendment excessive 7 force claim against Officer Tavcar and John Doe #2 (once identified). 8 (5) The Clerk of Court shall ISSUE a summons for Officer Tavcar, and deliver the 9 same, to the U.S. Marshal for service. The Clerk also shall also SEND a copy of the complaint 10 and this Order to the U.S. Marshal for service on the Officer Tavcar. The Clerk shall SEND to 11 Plaintiff a USM-285 form. Plaintiff has 21 days within which to furnish to the U.S. Marshal the 12 completed USM-285 form with relevant information for Officer Tavcar. The completed form can 13 be sent to the U.S. Marshal at 400 S. Virginia Street, 2nd floor, Reno, Nevada 89501. Within 14 twenty (20) days after receiving from the U.S. Marshal a copy of the USM-285 forms showing

15 whether service has been accomplished, if the defendant was not served, and if Plaintiff wants 16 service to be attempted again, he must file a motion with the court providing a more detailed 17 name and/or address for service, or indicating that some other method of service should be 18 attempted. 19 (6) Under Federal Rule of Civil Procedure 4(m), service must be completed within 90 20 days of the date of this Order. If Plaintiff requires additional time to meet any of the deadlines 21 set by the court, he must file a motion for extension of time under Local Rule 1A 6-1 before the 22 expiration of the deadline, and the motion must be supported by a showing of good cause. A 23 motion filed after a deadline set by the court or applicable rules will be denied absent a showing of excusable neglect. 3 (7) Once a defendant is served, Plaintiff must serve a copy of every pleading or other document submitted for consideration by the court upon the defendant or, if an appearance has been entered by counsel, upon the attorney. Plaintiff must include with the original of each 6|| document to be filed with the court a certificate stating that a true and correct copy of the 7|| document was served on the defendant, or counsel, if the defendant has an attorney. Under Local Rule 5-1 the proof of service must show the day and manner of service and the name of the person served. The court may disregard any paper received which has not been filed with the 10}| Clerk, or that fails to include a certificate of service. 1] 12) IT IS SO ORDERED. 13 Dated: August 8, 2023 CS oy Craig S. Denney 16 United States Magistrate Judge 17 18 19 20 21 22 23