United States District Court, D. Nevada
December 8, 2016
REV KASEY F. HOFFMANN, Plaintiff,
RAIL CITY, et. al., Defendants.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
the court are Plaintiff's renewed application to proceed
in forma pauperis (Electronic Case Filing (ECF) No. 9) and
pro se complaint (ECF No. 1-1).
APPLICATION TO PROCEED IN FORMA PAUPERIS
person may be granted permission to proceed in forma pauperis
if the person "submits an affidavit that includes a
statement of all assets such [person] possesses [and] that
the person is unable to pay such fees or give security
therefor. Such affidavit shall state the nature of the
action, defense or appeal and affiant's belief that the
person is entitled to redress." 28 U.S.C. § 1915;
Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)
(en banc) (stating that this provision applies to all actions
filed in forma pauperis, not just prisoner actions).
addition, the Local Rules of Practice for the District of
Nevada provide: "Any person, who is unable to prepay the
fees in a civil case, may apply to the Court for authority to
proceed in forma pauperis. The application shall be
made on the form provided by the Court and shall include a
financial affidavit disclosing the applicant's income,
assets, expenses, and liabilities." LSR 1-1.
supporting affidavits [must] state the facts as to [the]
affiant's poverty with some particularity, definiteness
and certainty.'" U.S. v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (quoting Jefferson v. United
States, 277 F.2d 823, 725 (9th Cir. 1960)). A litigant
need not "be absolutely destitute to enjoy the benefits
of the statute." Adkins v. E.I. Du Pont De Nemours
& Co., 335 U.S. 331, 339 (1948).
prisoner seeks to proceed without prepaying the filing fee:
[I]n addition to filing the affidavit filed [as described
above], [the prisoner] shall submit a certified copy of the
trust fund account statement (or institutional equivalent)
for the prisoner for the 6-month period immediately preceding
the filing of the complaint or notice of appeal, obtained
from the appropriate official of each prison at which the
prisoner is or was confined.
28 U.S.C. § 1915(a)(2). Notwithstanding the foregoing:
[I]f a prisoner brings a civil action...in forma pauperis,
the prisoner shall be required to pay the full amount of a
filing fee. The court shall assess and, when funds exist,
collect, as a partial payment of any court fees required by
law, an initial partial filing fee of 20 percent of the
(A) the average monthly deposits to the prisoner's
(B) the average monthly balance in the prisoner's account
for the 6-month period immediately preceding the filing of
the complaint of notice of appeal.
(2) After payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments of 20
percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the
prisoner shall forward payments from the prisoner's
account to the clerk of the court each time the amount in the
account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b)(1), (2).
who was being held at the Shasta County Jail, filed his
initial application to proceed in forma pauperis on June 3,
2016. (ECF No. 1.) On August 4, 2016, the court denied the
application without prejudice because the court could not
tell from the accompanying jail documentation Plaintiff's
average monthly deposits or average monthly balance so as to
determine the amount of any initial partial filing fee. (ECF
No. 3.) The court directed the court to send Plaintiff a
District of Nevada application to proceed in forma pauperis,
acknowledgment and financial certificate forms, and gave him
thirty days to submit a completed application and the
required documentation. (Id.) He was advised that if
he failed to do so or pay the filing fee, the court would
recommend dismissal of the action. (Id.)
did not timely file the renewed application and accompanying
documentation; therefore, on September 7, 2016, the court
entered a report and recommendation that the action be
dismissed. (ECF No. 4.) The report and recommendation was
returned as undeliverable. (ECF No. 5.) On September 22,
2016, District Judge Jones entered an order adopting and
accepting the report and recommendation and dismissing the
action, which was also returned as undeliverable. (ECF Nos.
December 7, 2016, some three months after he was to have
filed his renewed application to proceed in forma pauperis,
Plaintiff filed a renewed application to proceed in forma
pauperis (ECF No. 9), along with a letter to the clerk
stating that he was tardy in submitting the application
because he lost his “property, address, etc.”
from being in administrative segregation, and noted his
address change to the Deuel Vocational Institution in Tracy,
California. (ECF No. 8.)
court recommends that the application be denied as moot
because Plaintiff failed to timely file a notice of change of
address (Local Rules for Special Proceedings and Appeals
(LSR) 2-2); failed to timely file his renewed application to
proceed in forma pauperis; and in any event, Plaintiff's
complaint fails to state any claim upon which relief may be
U.S.C. § 1915A provides that “[t]he court shall
review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A (a). “On review,
the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
complaint-- (1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A (b)(1)-(2).
of a complaint for failure to state a claim upon which relief
may be granted is provided for in Federal Rule of Civil
Procedure 12(b)(6), and this court applies the same standard
under 28 U.S.C. § 1915A when reviewing the adequacy of
the complaint or amended complaint. See Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (citation
omitted). Review under 12(b)(6) is essentially a ruling on a
question of law. See Chappel v. Lab. Corp. of
America, 232 F.3d 719, 723 (9th Cir. 2000).
reviewing the complaint under this standard, the court must
accept as true the allegations of the complaint, Hosp.
Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740
(1976), construe the pleadings in the light most favorable to
plaintiff, and resolve all doubts in the plaintiff's
favor, Jenkins v. McKeithen, 395 U.S. 411, 421
(1969). Allegations in pro se complaints are held to less
stringent standards than formal pleadings drafted by lawyers,
and must be liberally construed. See Hughes v. Rowe,
449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (per curiam); Hamilton v.
Brown, 630 F.3d 889, 893 (9th Cir. 2011).
complaint must contain more than a "formulaic recitation
of the elements of a cause of action, " it must contain
factual allegations sufficient to "raise a right to
relief above the speculative level." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The
pleading must contain something more...than...a statement of
facts that merely creates a suspicion [of] a legally
cognizable right of action." Id. (quoting 5 C.
Wright & A. Miller, Federal Practice and Procedure §
1216, at 235-36 (3d ed. 2004)). At a minimum, a plaintiff
should state "enough facts to state a claim to relief
that is plausible on its face." Id. at 570;
see also Ashcroft v. Iqbal, 556 U.S. 662, 678
dismissal should not be without leave to amend unless it is
clear from the face of the complaint that the action is
frivolous and could not be amended to state a federal claim,
or the district court lacks subject matter jurisdiction over
the action. See Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995) (dismissed as frivolous);
O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.
alleges that he was visiting Rail City Casino as a paying
patron on February 16, 2015 at 3:00 a.m., and went to the
restaurant to eat. (ECF No. 1-1 at 3, 4.) He avers that
waitresses and security guards were harassing him, asking him
to pay before he finished his meal. (Id. at 3, 4,
6.) He claims that he was racially profiled and discriminated
against based on his race, appearance and religion, and that
his rights were likewise violated under the Equal Protection
Clause and the Americans with Disabilities Act (ADA).
(Id. at 4.)
on to allege that he went to pay with a personal check, but a
small sign said that the restaurant did not accept personal
checks, so he said, “let me run to the car and grab
some cash.” (Id. at 3, 6.) At this point, he
claims that a security guard “kidnapped” him and
took him to a holding area and placed in handcuffs for simply
trying to pay what he owed. (Id. at 3, 5.)
security supervisor twisted his arm around his back,
dislocating his shoulder. (Id. at 5, 6.) He avers
that this amounted to false imprisonment and false arrest.
(Id. at 3, 4, 5.)
point, they called the Reno Police, and he was cited for
trespassing and told not to come on the property any longer.
(Id. at 4.)
sustain an action under Section 1983, a plaintiff must show
(1) that the conduct complained of was committed by a person
acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or
statutory right.” Wood v. Ostrader, 879 F.2d
583, 587 (9th Cir. 1989).
Plaintiff has not specifically identified any particular
defendant purportedly responsible for violating his rights by
name, other than naming Rail City. Second, Plaintiff brings
this action pursuant to 42 U.S.C. § 1983, but complains
of action taken by waitresses and security guards at Rail
City. His allegations by no means implicate the conduct of a
person acting under color of state law. Plaintiff states no
other cognizable claims for relief. Given the nature of the
allegations against individuals working for a private casino,
amendment would be futile. Therefore, dismissal with
prejudice is appropriate.
HEREBY RECOMMENDED that the District Judge enter an order
DENYING AS MOOT Plaintiff's renewed application to
proceed in forma pauperis (ECF No. 9), and ruling that
Plaintiff's action remain DISMISSED, but this time the
dismissal should be WITH PREJUDICE.
he may file, pursuant to 28 U.S.C. § 636(b)(1)(C),
specific written objections to this Report and Recommendation
within fourteen days of receipt. These objections should be
titled "Objections to Magistrate Judge's Report and
Recommendation" and should be accompanied by points and
authorities for consideration by the district judge.
this Report and Recommendation is not an appealable order and
that any notice of appeal pursuant to Rule 4(a)(1) of the
Federal Rules of Appellate Procedure should not be filed
until entry of judgment by the district court.