Barren, Sr. v. Pandukht

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA GREGORY DEAN BARREN, SR., Case No. 2:23-cv-01414-APG-NJK 9 Plaintiff(s), ORDER v. [Docket No. 1] TALEEN PANDUKHT, 12 Defendant(s).

13 Pursuant to 28 U.S.C. § 1915 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. Docket No. 1. Plaintiff also submitted a complaint. Docket No. 1-1.1 I. In Forma Pauperis Application 17 Plaintiff filed the affidavit required by § 1915(a). Docket No. 1. Plaintiff has shown an inability to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted pursuant to 28 U.S.C. § 1915(a). The Clerk’s Office is further INSTRUCTED to file the complaint on the docket. The Court will now review Plaintiff’s complaint.

22 II. Screening the Complaint 23 Upon granting an application to proceed in forma pauperis, courts additionally screen the complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

1 The Court liberally construes the filings of pro se litigants. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

1 When a court dismisses a complaint under § 1915, the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 4 F.3d 1103, 1106 (9th Cir. 1995).

5 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 556 U.S. at 679.

15 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570.

18 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro se pleadings is required after Twombly and Iqbal).

21 In addition, the Court has a duty to ensure that it has subject matter jurisdiction over the dispute before it, an issue it may raise at any time during the proceedings. See, e.g., Fed. R. Civ. 23 P. 12(h)(3). Federal courts are courts of limited jurisdiction and possess only that power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). “The party asserting federal jurisdiction bears the burden of proving that the case is properly in federal court.” McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

3 In this case, Plaintiff’s complaint brings claims against Taleen Pandukht, a Chief Deputy District Attorney, for the alleged violation of his due process rights. See Docket No. 1 at 2-3.

5 Plaintiff asks the Court to revoke, suspend, or vacate and remand the denial of his motion for writ of error coram nobis by the Eighth Judicial District Court in Clark County, Nevada. See id. at 4, 13. However, under the Rooker-Feldman doctrine, “lower courts are precluded from exercising appellate jurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463 (2006); see also Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004) (quoting Noel v. 10 Hall, 341 F.3d 1148, 1164 (9th Cir. 2004)) (“If a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court.”). Thus, Plaintiff may not seek relief in this Court from the state court’s judgment.

14 In light of the above, the Court lacks subject matter jurisdiction under the federal question provision. See 28 U.S.C. § 1343(a)(3). In addition, the complaint does not provide an alternative basis for this Court to hear Plaintiff’s state law claims. More specifically, the complaint does not provide a basis to exercise diversity jurisdiction in this matter, which requires that the parties be citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).

19 No showing has been made in the complaint as to the diverse citizenship of the parties.

20 Accordingly, the complaint does not establish federal subject matter jurisdiction. Although it appears unlikely that Plaintiff could cure the deficiencies identified herein, the Court will provide him one opportunity to do so if he believes he can.

23 III. Conclusion 24 Accordingly, IT IS ORDERED that: 25 1. Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not be 26 required to pay the filing fee. Plaintiff is permitted to maintain this action to conclusion 27 without the necessity of prepayment of any additional fees or costs or the giving of a 1 security therefor. This order granting leave to proceed in forma pauperis shall not 2 extend to the issuance and/or service of subpoenas at government expense.

3 2. The Clerk’s Office is INSTRUCTED to file Plaintiffs complaint on the docket.

4 3. The complaint is DISMISSED with leave to amend. Plaintiff will have until October 5 27, 2023, to file an amended complaint, if the noted deficiencies can be corrected. If 6 Plaintiff chooses to amend the complaint, Plaintiff is informed that the Court cannot 7 refer to a prior pleading (i.e., the original complaint) in order to make the amended 8 complaint complete. This is because, as a general rule, an amended complaint 9 supersedes the original complaint. Local Rule 15-1(a) requires that an amended 10 complaint be complete in itself without reference to any prior pleading. Once a plaintiff 11 files an amended complaint, the original complaint no longer serves any function in the 12 case. Therefore, in an amended complaint, as in an original complaint, each claim and 13 the involvement of each Defendant must be sufficiently alleged.

14 4. Failure to comply with this order will result in the recommended dismissal of this 15 case.

16 IT IS SO ORDERED.

17 Dated: September 27, 2023 te.

18 fo ANS Bo _ 19 Unite State agistrate Judge :