United States District Court, D. Nevada
PHILIP CH. PENG, Plaintiffs,
SOUTH PASADENA POLICE DEPARTMENT, Defendants.
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.
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.
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).
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).
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).
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.”
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.
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).
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).
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).
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