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Peng v. South Pasadena Police Department

United States District Court, D. Nevada

April 10, 2017

PHILIP CH. PENG, Plaintiffs,
v.
SOUTH PASADENA POLICE DEPARTMENT, Defendants.

          ORDER

         Presently before the court is Magistrate Judge Leen's report and recommendation (“R&R”) (ECF No. 2), to which pro se plaintiff Philip C.J. Peng objected (ECF No. 3).

         I. Background

         Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against defendant South Pasadena Police Department (the “SPPD”) (ECF Nos. 1-1, 1-3), as well as an application to proceed in forma pauperis (ECF No. 1).[1]

         Plaintiff alleges that his livelihood has been extremely harmed by his inability to obtain background check clearance from the SPPD for the past seventeen years. (ECF No. 1-3 at 3). Plaintiff asserts that he filed a complaint in California state court requesting to seal and destroy his adult arrest record. (ECF No. 1-1). For relief, plaintiff asserts that he is entitled to have his adult arrest record sealed and destroyed and that he should be compensated for his stress, time loss, and financial insecurity. (ECF No. 1-3 at 9).

         In the R&R, the magistrate judge recommends that plaintiff's application to proceed in forma pauperis be denied and that plaintiff's complaint be dismissed without prejudice for lack of jurisdiction. (ECF No. 2).

         Plaintiff does not make a specific objection to the magistrate judge's findings or recommendation, but argues that he is in a dire situation because he has had $32, 000.00 stolen from him. (ECF No. 3). Plaintiff also suggests that the court review his book regarding “America's [] long history of discriminating Chinese.” (ECF No. 3).

         II. Legal Standard

         A party may file specific written objections to the findings and recommendations of a United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); LR IB 3-2. Where a party timely objects to a magistrate judge's report and recommendation, the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id.

         Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of a magistrate judge within fourteen (14) days from the date of service of the findings and recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a motion within fourteen (14) days after service of the motion.

         III. Discussion

         As an initial matter, the court acknowledges that plaintiff's complaint and objection were filed pro se and are therefore held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”) (internal quotation marks and citation omitted). Pro se pleadings must be liberally construed, especially where civil rights claims are involved. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). “Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995).

         Liberally construing plaintiff's complaint, plaintiff alleges the following: employment for minorities is a problem; “we Chinese don't have a chance[;]” his adult arrest record has been expunged; he has sought various positions of employment for the past seventeen years, none of which has been successful because the SPPD refused to provide his background; he recently applied to be a foster parent with Nevada Children and Family Services, but was unsuccessful because it requires a background check; his damages include stress, time loss, and financial insecurity; and he is entitled to have his adult arrest record sealed and destroyed. (ECF Nos. 1-1, 1-2, 1-3).

         In screening the complaint, the magistrate judge found that plaintiff failed to sufficiently plead subject matter jurisdiction and personal jurisdiction. (ECF No. 2). More specifically, the magistrate judge found that plaintiff failed to identify any federal or state statute that would authorize the court to provide the relief sought. (ECF No. 2 at 5). The magistrate judge further found that plaintiff failed to demonstrate that the SPPD is subject to personal jurisdiction in Nevada. (ECF No. 2 at 4-5).

         Concluding that these deficiencies could not be cured by amendment, the magistrate judge recommends dismissal of plaintiff's complaint without prejudice. (ECF No. 2). Further, the magistrate judge recommends denial of plaintiff's application to proceed in forma pauperis because plaintiff erroneously submitted an in forma pauperis ...


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