Albanese v. Las Vegas Metro. Police Dep't
| Decision Date | 30 June 2017 |
| Docket Number | Case No. 2:17-cv-00577-GMN-PAL |
| Parties | GRACE ALBANESE, Plaintiff, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
REPORT OF FINDINGS AND RECOMMENDATION
This matter is before the court for a screening of Plaintiff Grace Albanese's Second Amended Complaint (ECF No. 50). This screening is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.
Ms. Albanese is proceeding in this action pro se, that is, representing herself, and she has been given permission to proceed in forma pauperis ("IFP"). See Screening Order (ECF No. 12). On February 23, 2017, Ms. Albanese commenced this action by filing an IFP Application (ECF No. 1) and complaint. This case arises from her allegations, pursuant to 28 U.S.C. § 1983, that defendants violated her civil rights. Upon initial review of the complaint, the court issued a Screening Order (ECF No. 12) instructing Ms. Albanese to file an amended complaint to correct certain defects in her pleading.
On May 9, 2017, the court issued a second Screening Order (ECF No. 30) dismissing the Amended Complaint (ECF No. 17) for failure to state a colorable claim and granting her leave to amend her pleading. On June , 2017, she filed her Second Amended Complaint (ECF No. 50), which the court will now screen.
Additionally, the court notes that both prior screening orders acknowledged that Ms. Albanese has submitted numerous letters to the court since filing this action. See Screening Order (ECF No. 15) (citing Pl.'s Letters (ECF Nos. 2, 4, 5, 6, 7, 8, 9, 10, 11)); Screening Order (ECF No. 30) (citing Pl.'s Letters (ECF Nos. 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28)). Albanese was explicitly informed that she may not request relief from the court by letter. However, she has continued to file numerous improper letters. See Pl.'s Letters (ECF Nos. 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67).
Letters to judges are not motions authorized by the Federal Rules of Civil Procedure or the Local Rules of Practice.1 LR IA 7-1(b) (). "It is well established that district courts have inherent power to control their docket." Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010). This includes the power to strike improperly filed items from the docket. Id. at 404-05; Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 586-87, 588 (9th Cir. 2008). Such power enables the court to enforce its orders, manage its docket, and regulate insubordinate litigation conduct. Adobe Sys. Inc. v. Christenson, 891 F. Supp. 2d 1194, 1201 (D. Nev. 2012). Litigation misconduct includes the filing of procedurally improper documents. See id.
Ms. Albanese may not send judges case-related correspondence requesting that the court take some action on her behalf. Any request for relief from the court must be filed as a motion supported by a memorandum of points and authorities. See LR 7-2. Albanese is warned that if she continues to file letters, requesting relief that has already been denied, or continues to make frivolous, unsupported requests it may result in the imposition of sanctions up to and including dismissal of this case.
After granting a litigant's IFP request, a federal court must screen the complaint and any amended complaints filed prior to a responsive pleading pursuant to § 1915(e). Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (). If the complaint states a valid claim for relief, the court will direct the Clerk of the Court to issue summons to the defendant(s) and the plaintiff must then serve the summons and complaint within 90 days. See Fed. R. Civ. P. 4(m). When a court dismisses a complaint pursuant to § 1915(e), a plaintiff is ordinarily given leave to amend 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. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Allegations in a pro se complaint are held to less stringent standards than formal pleading drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir. 2010). However, pro se litigants "should not be treated more favorably than parties with attorneys of record," Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986); rather, they must follow the same rules of procedure that govern other litigants. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).
The Second Amended Complaint (ECF No. 50) names as defendants the Las Vegas Metropolitan Police Department ("LVMPD") and LVMPD employees, Carroll Denny and Sargent Cory Staheli. Ms. Albanese alleges that LVMPD has a policy of "unquestionable disrespect" towards her that violates the cruel and unusual clause of the constitution. Id. at 4-5. The policy "requires all LVMPD employees to use cruel and unusual conduct" towards her and it resulted in violations of her equal protection and due process rights. Id. at 5. Municipal liability should be imposed on LVMPD for its "reckless indifference to maintaining civility and order." Id. at 5-6. LVMPD's consistent pattern of uncivil behavior is the norm and might be an attempt to deter Albanese from using police services. Id. at 6. Defendants Denny and Staheli, in particular, have applied the policy to Albanese whenever she comes in contact with the police. LVMPD's policy and dealings with her have created a hostile relationship and resulted in her lack of trust, which "this and many lawsuits can confirm." Id. at 7.2 So cruel is LVMPD's opinion of Albanese that"a policy of uncivilized hostility is the norm and municipal liability the answer." Id.
Ms. Albanese alleges that the defendants' actions violated her rights to free speech, equal protection, and due process, as well as her right to be free of public corruption. Id. at 11. She asserts that she has mental distress injuries resulting from LVMPD's policy and she seeks $500,000 in damages. Id. at 8.
For the reasons discussed below, the court finds that the Second Amended Complaint fails to state a colorable claim. The court will therefore recommend dismissal of this case.
Federal courts are required to dismiss an IFP action if the complaint fails to state a claim upon which relief may be granted, is legally "frivolous or malicious," or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In determining whether a complaint is frivolous and therefore warrants complete or partial dismissal, a court is not bound to accept without question truth of plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32 (1992). Allegations are frivolous when they are "clearly baseless," id., or lack an arguable basisin law and fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolous claims include those based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest that clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). Id. at 327-28; McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A complaint may be dismissed as frivolous if it "merely repeats pending or previously litigated claims." Cato, 70 F.3d at 1105 n.2 (). The standard for determining whether a plaintiff fails to state a claim upon which relief can be granted under § 1915 is the same as the standard under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). A district court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Review under Rule 12(b)(6) is essentially a ruling on a question of law. N. Star Intern. v. Ariz. Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983).
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); accord Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The simplified pleading standard set forth in Rule 8(a) applies to all civil actions with limited exceptions. Alvarez v. Hill, 518 F.3d 1152, 1159 (9th Cir. 2008). 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) (citation omitted). Mere recitals of the elements of a cause of action supported only by conclusory allegations do not suffice. Iqbal, 556 U.S. at 679-80. A complaint "must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Where the claims in the complaint have not crossed the line from plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570. Stated differently, the factual allegations "must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr, 652 F.3d at 1216.
42 U.S.C. § 1983 provides a mechanism for the private enforcement of substantive rights conferred by the Constitution and federal statutes. Graham v. Connor, 490 U.S. 386, 393-94 (1989). Section...
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