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 Andre
Smith-Lovejoy'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 plaintiffs application to proceed
in forma pauperis be granted, and that the complaint
be dismissed with prejudice.
IN FORMA PA UPERIS 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. Based on the
financial information in the record, the court finds that
plaintiff is unable to pay the filing fee in this matter.
Accordingly, the court recommends that plaintiffs 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).
names as defendant in this action the State of Nevada. (ECF
No. 1-1 at 1.) Plaintiffs complaint consists only of brief,
nonsensical statements, such as, "No trial de nova (sic)
for 5th Amendment or compromise of claims for
Smith's Food & Drug stores, Nike Shoe Company, or all
due monies, etc." (See Id. at 6.) Aside from
plaintiffs statements, his complaint contains no factual or
legal allegations. Federal Rule of Civil Procedure 8(a)(2)
requires that a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests."
Twombly, 550 U.S. at 555 (quotation and alteration
omitted). It must also include "a demand for the relief
sought . . . ." Fed.R.Civ.P. 8(a)(3). Plaintiff states
no claim upon which relief may be granted, and given the
vague nature of the allegations, amendment would be futile.
See Cato, 70 F.3d at 1106. Therefore, it is
recommended that the action be dismissed with prejudice.
the Eleventh Amendment protects nonconsenting states from
suits by private individuals in federal court. Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). Congress did not abrogate the states' Eleventh
Amendment immunity in enacting § 1983, Quern v.
Jordan, 440 U.S. 332, 345 (1979), nor has Nevada waived
its immunity. Nev. Rev. Stat. § 41.031(3). Accordingly,
plaintiffs claims against the State of Nevada are barred and
should be dismissed.
with the foregoing, the court finds that dismissal is
warranted under 28 U.S.C. 1915(e)(2)(B)(ii). 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 ...