Jones III v. Doe 1

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA JOHNNY LEE JONES, Case No. 2:24-cv-01039-APG-NJK 7 Plaintiff(s), ORDER v. [Docket No. 1] JOHN DOE #1, et al., 10 Defendant(s).

11 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.

13 I. In Forma Pauperis Application 14 Plaintiff filed an 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 application to proceed in forma pauperis (Docket No. 1) 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.

18 II. Screening the Complaint 19 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).

23 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 26 F.3d 1103, 1106 (9th Cir. 1995).

27 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.

9 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.

12 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).

15 In addition, the Court has a duty to ensure that it has subject matter jurisdiction over the dispute before it. Fed.R.Civ.P. 12(h)(3). Federal courts have limited jurisdiction and possess only that power authorized by the Constitution and statute. See Kokkonen v. Guardian Life Ins. Co. Of Am., 511 U.S. 375, 377 (1994). Plaintiff 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)).

21 Plaintiff’s complaint involves allegations that a worker at the Courtyard Homeless Resource Center asked him to sit down, Docket No. 1-1 at 4, which led to Plaintiff seeking to file a complaint and Plaintiff’s removal from the premises by security, id. at 6-7. Plaintiff indicates that federal question subject matter exists because he brings claims under the First Amendment and the Fourteenth Amendment, id. at 3-4, which the Court construes as claims brought pursuant to 42 U.S.C. § 1983.

27 A threshold requirement for proceeding with any § 1983 claim is that the defendants acted “under color of state law” with respect to the alleged deprivation of the plaintiff’s constitutional rights. West v. Atkins, 487 U.S. 42, 48 (1988). Although the complaint here indicates that the Courtyard Homeless Resource Center provides resources regarding federal services like food assistance, see Docket No. 1-1 at 7, the complaint does not allege that the Courtyard Homeless Resource Center is a government entity or that the individual doe defendants were otherwise acting under color of state law.1 6 Accordingly, the complaint fails to state a claim on which relief may be granted and fails to establish subject matter jurisdiction. Plaintiff is afforded an opportunity to file an amended complaint if the deficiencies identified above can be corrected.

9 III. Conclusion 10 Accordingly, IT IS ORDERED that: 11 1. Plaintiff’s application to proceed in forma pauperis (Docket No. 1) is GRANTED.

12 Plaintiff shall not be required to pay the filing fee. Plaintiff is permitted to maintain 13 this action to conclusion without the necessity of prepayment of any additional fees or 14 costs or the giving of a security therefor. This order granting leave to proceed in forma 15 pauperis shall not extend to the issuance and/or service of subpoenas at government 16 expense.

17 2. The Clerk’s Office is INSTRUCTED to file Plaintiff’s complaint on the docket.

18 3. Plaintiff’s complaint is DISMISSED with leave to amend. Plaintiff will have until 19 January 10, 2025, to file an amended complaint, if the noted deficiencies can be 20 corrected. If Plaintiff chooses to amend the complaint, Plaintiff is informed that the 21 Court cannot refer to a prior pleading (i.e., the original complaint) in order to make the 22 amended complaint complete. This is because, as a general rule, an amended complaint 23 supersedes the original complaint. Local Rule 15-1(a) requires that an amended 24 complaint be complete in itself without reference to any prior pleading. Once a plaintiff 25 files an amended complaint, the original complaint no longer serves any function in the 27 1 Because of this threshold deficiency that implicates the Court’s jurisdiction, the undersigned will not herein otherwise screen the sufficiency of the allegations in the complaint to state a claim. ] case. Therefore, in an amended complaint, as in an original complaint, each claim and 2 the involvement of each defendant must be sufficiently alleged. Failure to file an 3 amended complaint by the deadline set above will result in the recommended 4 dismissal of this case.

5 IT IS SO ORDERED.

6 Dated: December 10, 2024 , Nancy J. Koppe 8 United States Magistrate Judge