United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and LR IB 1-4. Before the court is Brent
Morris's (“plaintiff”) application to proceed
in forma pauperis (ECF No. 1) and pro se
complaint (ECF No. 1-1). Having reviewed the record, the
court recommends that plaintiff's application to proceed
in forma pauperis be granted, and that the complaint
be dismissed with prejudice.
IN FORMA PAUPERIS APPLICATION
forth in 28 U.S.C. § 1915(a), the court may authorize a
plaintiff to proceed in forma pauperis if he or she
is unable to pay the prescribed court fees. The plaintiff
need not “be absolutely destitute to enjoy the benefits
of the statute.” Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339 (1948). Based on the
financial information provided in his application to proceed
in forma pauperis, the court finds that plaintiff is
unable to pay the filing fee in this matter. (See
ECF No. 1.) Accordingly, the court recommends that
plaintiff's application to proceed in forma
pauperis be granted.
to proceed in forma pauperis are governed by 28
U.S.C. § 1915. Section 1915 provides, in relevant part,
that “the court shall dismiss the case at any time if
the court determines that . . . the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). Dismissal 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
the court applies the same standard under section 1915 when
reviewing the adequacy of a complaint or amended complaint.
See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
Rule 12(b)(6), the court must dismiss the complaint if it
fails to “state a claim for relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Courts accept as true all well-pled
factual allegations, set aside legal conclusions, and verify
that the factual allegations state a plausible claim for
relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Although the complaint need not contain detailed factual
allegations, it must offer more than “a formulaic
recitation of the elements of a cause of action” and
“raise a right to relief above a speculative
level.” Twombly, 550 U.S. at 555.
complaint is construed in a light most favorable to the
plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral
Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court takes
particular care when reviewing the pleadings of a pro
se party, for a more forgiving standard applies to
litigants not represented by counsel. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a
liberal construction may not be used to supply an essential
element of the claim not initially pled. Pena v.
Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If dismissal
is appropriate, the pro se plaintiff should be given
leave to amend the complaint, and some notice of its
deficiencies, unless it is clear that those deficiencies
cannot be cured. Cato v. United States, 70 F.3d
1103, 1107 (9th Cir. 1995).
complaint alleges various civil rights claims pursuant to 42
U.S.C. § 1983 for alleged constitutional violations
stemming from plaintiff's arrest, trial, and conviction
in Nevada state court. (ECF No. 1-1.) Plaintiff sues
defendants Rachel Martines (“Martines”), Boyd
Gaming Corporation, the Orleans Hotel and Casino
(“Orleans”), Elizabeth Sobczak
(“Sobczak”), Jeffery Fine (“Fine”),
and Mitchell Caberto (“Caberto”). (Id.
at 2-3.) Plaintiff alleges that on September 22, 2010, he was
unlawfully arrested by Nevada Gaming Control Board agent
Martines. (Id. at 5.) Upon his arrest, plaintiff
alleges he was searched and had $768.00 in Caesars gaming
chips and $5, 000.00 in Orleans gaming chips seized.
(Id.) Plaintiff asserts that the seizure of the
chips was illegal and there was a lack of probable cause for
his arrest. (Id. at 4-7.) Further, plaintiff asserts
that he was subjected to a malicious prosecution on charges
of cheating at the Orleans, which he alleges were
subsequently dismissed. (Id. at 8.)
not plaintiff's first attempt to litigate the facts of
this case. Aside from state court actions, plaintiff has
filed two nearly identical cases in this district. See
Morris v. Orleans Hotel and Casino,
2:12-cv-01683-JCM-CWH (dismissed as frivolous and for failure
to state a claim) and Morris v. Caberto, Case No.
2:16-cv-02416-GMN-NJK (barred by claim preclusion and
dismissed with prejudice). The court notes that duplicative
litigation by a plaintiff proceeding in forma
pauperis may be dismissed as malicious under 28 U.S.C.
§ 1915(e). See Cato, 70 F.3d at 1105 n.2
(citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th
Cir. 1988) (holding that repetitious litigation of virtually
identical causes of action is subject to dismissal as
malicious)); Pittman v. Moore, 980 F.2d 994, 994-95
(5th Cir. 1993) (holding that it is malicious for a
“pauper” to file a lawsuit that duplicates
allegations of another pending federal lawsuit by the same
plaintiff). As such, plaintiff's complaint should be
dismissed as malicious with prejudice.
with the foregoing, the court concludes that dismissal is
warranted under 28 U.S.C. 1915(e)(2)(B)(i). Because amendment
would be futile, the dismissal should be with prejudice.
See Cato, 70 F.3d at 1106.
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of
the Local Rules of Practice, the parties may file specific
written objections to this Report and Recommendation within
fourteen days of receipt. These objections should be entitled
“Objections to Magistrate Judge's Report and
Recommendation” and should be accompanied by points and
authorities for consideration by the District Court.
Report and Recommendation is not an appealable order and any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed ...