Dillard v. Lovell ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 James Dillard, Case No. 2:24-cv-01143-APG-BNW 5 Plaintiff, ORDER 6 v. 7 Damon Lovell, et al., 8 Defendants. 9 10 Before this Court is Plaintiff’s motion to amend. ECF No. 7. By way of background, this 11 Court previously granted Plaintiff leave to amend when it screened his original complaint. ECF 12 No. 3. In turn, Plaintiff filed an amended complaint. ECF No. 5. Before this Court had a chance to 13 screen his amended compliant, Plaintiff filed the instant motion. 14 Plaintiff already had to leave to amend. As such his motion is denied as moot. 15 Nevertheless, the attachments to the instant motion do not contain an amended complaint. 16 Instead, the attachments include a variety of different documents submitted to the Copyright 17 Claims Court.1 ECF Nos. 7-1 through 7-10. As explained below, these attachments do not 18 sufficiently plead a claim for relief. As a result, this Court will allow Plaintiff to once again 19 amend his complaint. 20 I. Analysis 21 A. Screening standard 22 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 23 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 24 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 25 26 1 It is not clear whether Plaintiff intended this Court to screen his amended complaint at ECF No. 5. Given 27 his new filming at ECF No. 7, this Court cannot screen an earlier amended complaint. Nevertheless, if that was Plaintiff’s intent, he simply needs to refile the amended complaint at ECF No. 5 and this Court will 1 granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 2 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 3 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 4 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 5 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 6 v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only 7 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 8 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 9 2014) (quoting Iqbal, 556 U.S. at 678). 10 In considering whether the complaint is sufficient to state a claim, all allegations of 11 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 12 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 13 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 14 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 15 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 16 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 17 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 18 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 19 B. Screening the Complaint 20 Plaintiff’s amended complaint at ECF No. 7 contains no factual allegations. See ECF No. 21 7-1 through 7-10. Instead, Plaintiff filed a variety of documents previously filed with the 22 Copyright Claims Board. Even liberally construing Plaintiff’s amended complaint, it does not 23 state sufficient factual allegations about the underlying dispute and the defendants’ role in the 24 matter to state a claim. As such, this Court will dismiss his claim with leave to amend. 25 If Plaintiff chooses to file an amended complaint, the document must be titled “Third 26 Amended Complaint.” The Third Amended Complaint must contain a short and plain statement 27 describing the underlying case and each of the defendants’ involvement in the case. See Fed. R. 1 || Plaintiff still must give each defendant fair notice of his claims against it and of Plaintiff’s 2 || entitlement to relief. 3 Additionally, Plaintiff is advised that if he files an amended complaint, the previous 4 || complaints (ECF Nos. 1-1, 5, and 7) no longer serve any function in this case. As such, the Third 5 |} Amended Complaint must be complete in and of itself without reference to prior pleadings or 6 || other documents. The Court cannot refer to a prior pleading or other documents to make 7 || Plaintiff’s Third Amended Complaint complete. 8 || IL. CONCLUSION 9 IT IS THEREFORE ORDERED that Plaintiff’s motion to amend (ECF No. 7) is denied 10 || as moot. 11 IT IS FURTHER ORDERED that the Clerk of Court is directed to detach and separately 12 || file ECF No. 7-1 on the docket and title it “Second Amended Complaint.” 13 IT FURTHER ORDERED that Plaintiff’s amended complaint is dismissed without 14 || prejudice. If Plaintiff chooses to file a Third Amended Complaint, he must do so no later than 15 || November 25, 2024. Failure to file an amended complaint that complies with this Order by the 16 || deadline may result in Plaintiff's case being dismissed. 17 18 DATED: October 24, 2024 19 20 gw lea WO Ean, BRENDA WEKSLER 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28