Arroyo v. Las Vegas Urology ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JEROMY ARROYO, Case No. 2:24-cv-01503-JAD-BNW 7 Plaintiff, ORDER AND REPORT AND 8 v. RECOMMENDATION 9 LAS VEGAS UROLOGY, ET AL., 10 Defendants. 11 12 Pro se plaintiff Jeromy Arroyo brings this lawsuit in connection with alleged medical 13 malpractice and conduct following that procedure. He moves to proceed in forma pauperis. ECF 14 No. 1. He submitted the affidavit required by 28 U.S.C. § 1915(a) showing an inability to prepay 15 fees or costs or give security for them. As a result, his request to proceed in forma pauperis will 16 be granted. This court now screens his complaint (ECF No. 1-1) as required by 28 U.S.C. 17 § 1915(e)(2). 18 I. ANALYSIS 19 A. Screening standard 20 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 21 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 22 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 23 granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 24 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 25 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 26 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 27 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 1 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 2 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 3 2014) (quoting Iqbal, 556 U.S. at 678). 4 In considering whether the complaint is sufficient to state a claim, all allegations of 5 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 6 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 7 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 8 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 9 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 10 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 11 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 12 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 B. Screening the complaint 14 Plaintiff alleges Dr. Zapinsky “botched [his] circumcision surgery.” Related to that claim, 15 he explains he had a lot of bleeding and that the stitches were “falling out.” Plaintiff also adds that 16 Las Vegas Urology falsely maintains they did not perform this surgery on him. 17 In addition, Plaintiff complains of several other actions allegedly undertaken by Las 18 Vegas Urology (which he characterizes as retaliatory) such as their failure to provide him his 19 medical records, blocking his number, deleting information from his patient portal, and no longer 20 allowing him to set foot in their office. Lastly, Plaintiff alleges he has been receiving threatening 21 emails. 22 He demands $100,000 in damages. 23 1. Jurisdiction 24 Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil 25 actions in diversity cases “where the matter in controversy exceeds the sum or value of $75,000” 26 and where the matter is between “citizens of different states.” 28 U.S.C. § 1332. Plaintiff is a 27 citizen of California and Defendants are citizens of Nevada. Plaintiff’ alleges his claims exceed 1 $75,000. Thus, at least preliminarily, it would appear this Court would have jurisdiction over 2 these claims. 3 2. Medical malpractice claim 4 As explained above, Plaintiff is asserting a medical-malpractice claim. For such claims, 5 Nevada Revised Statute § 41A.071 requires that: 6 [T[he district court shall dismiss the action, without prejudice, if the action is filed without 7 an affidavit that ... [s]upports the allegations contained in the action; ... [i]s submitted by a 8 medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged professional negligence; ... 9 [i]dentifies by name, or describes by conduct, each provider of health care who is alleged to be negligent; and ... [s]ets forth factually a specific act or acts of alleged negligence 10 separately as to each defendant in simple, concise and direct terms. 11 12 NEV. REV. STAT. § 41A.071(1)–(4). A complaint that does not contain this affidavit “is void ab 13 initio, meaning it is of no force and effect.” Martell v. Las Vegas Metro. Police Dep’t, No. 221- 14 cv-01733JAD-DJA, 2022 WL 1125380 (D. Nev. Apr. 13, 2022) (citing Washoe Med. Ctr. v. 15 Second Judicial Dist. Court of State of Nev. ex rel. Cty. of Washoe, 148 P.3d 790, 794 (Nev. 16 2006)). Plaintiff did not file the required affidavit, so this Court recommends that the medical- 17 malpractice claim be dismissed without prejudice but without leave to amend. 18 3. Remaining claims 19 20 Even liberally construing the remaining allegations, it is not clear what laws were violated 21 or by whom. Moreover, it appears highly unlikely that the damages for the remaining allegations 22 would exceed $75,000. Unless the amount in controversy exceeds $75,000 this Court would lack 23 jurisdiction, necessitating that Plaintiff bring the remaining allegations before the state court. This 24 Court will therefore dismiss the remaining allegations and will allow Plaintiff to amend his 25 complaint to better plead these remaining allegations. 26 If Plaintiff chooses to file an amended complaint, the document must be titled “Amended 27 Complaint.” The amended complaint must contain a short and plain statement describing the 1 underlying conduct and each defendant’s involvement in the case. See FED. R. CIV. P. 8(a)(2). 2 Although the Federal Rules of Civil Procedure adopt a flexible pleading standard, Plaintiff still 3 must give each defendant fair notice of his claims against them. Plaintiff must also provide more 4 than a conclusory assertion regarding the amount in controversy. 5 Additionally, Plaintiff is advised that if he files an amended complaint, the original 6 complaint (ECF No. 1-1) no longer serves any function in this case. As such, the amended 7 complaint must be complete in and of itself without reference to prior pleadings or other 8 documents. This court cannot refer to a prior pleading or other documents to make his amended 9 complaint complete. 10 CONCLUSION AND RECOMMENDATION 11 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 12 pauperis (ECF No. 1) is GRANTED. Plaintiff is permitted to maintain this action to conclusion 13 without prepaying fees or costs or giving security for them. 14 IT IS RECOMMENDED that Plaintiff’s claim for medical malpractice be dismissed 15 without prejudice but without leave to amend. 16 IT IS ORDERED that Plaintiff will be given leave to amend the remaining allegations. 17 Should Plaintiff choose to amend his complaint in federal court he must comply with the 18 instructions provided above and file an amended complaint by December 27, 2024. Failure to 19 follow instruction or to meet that deadline may result in a recommendation that the case be 20 dismissed. 21 IT IS FURTHER ORDERED that the clerk of court must detach and separately file 22 Prado’s complaint (ECF No. 1-1). 23 NOTICE 24 This report and recommendation is submitted to the United States district judge assigned 25 to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 26 may file a written objection supported by points and authorities within fourteen days of being 27 served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 1 || objection may waive the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153, 2 || 1157 (th Cir. 1991). 3 4 DATED: November 22, 2024 5 6 Kx pm la WEEN BRENDA WEKSLER 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28