United States District Court, D. Nevada
DANNY L. HUGHES, Plaintiff,
WARREN G. GOEDERT, et al, Defendants.
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 plaintiffs
second amended complaint (ECF No. 7). For the reasons
discussed below, the court recommends that the amended
complaint be dismissed without prejudice and without leave to
BACKGROUND AND PROCEDURAL HISTORY
L. Hughes ("plaintiff'), acting pro se, has
filed a civil rights complaint pursuant to 42 U.S.C. §
1983 and West v. Atkins, 487 U.S. 42, 48-49 (1988).
(ECF No. 7 at 1.) On June 1, 2017, this court issued a report
and recommendation to the District Court recommending that
plaintiffs application to proceed in forma pauperis
be granted and screening plaintiffs original complaint (ECF
No. 3). On June 30, 2017, the District Court adopted and
accepted the report and recommendation that Count I be
dismissed with prejudice with leave to amend and Count II be
dismissed with prejudice. (ECF No. 5.) Count I related to
allegations that defendants conspired to create a false court
record while Count II alleged that a state court judge did
not "support or uphold the Judicial Machinery of the
Court" pursuant to Pierson v. Ray, 386 U.S.
547, 568 (1967). (ECF No. 3 at 2-3.) The court dismissed
these claims on various grounds, including that certain
defendants were immune from suit, and that plaintiff had
failed to state a claim due to his complaint's miniscule
factual allegations. (Id.) Plaintiff was given leave
to amend the complaint to rectify, if possible, these
deficiencies. (Id. at 4.)
filed his second amended complaint on July 10, 2017. (ECF No.
7) As in the original complaint, plaintiff names as
defendants Warren W. Goedert, Delmar L. Hardy, and Joan C.
Wright. (Id. at 1.) Plaintiff now alleges defendants
deprived his due process rights guaranteed in the Fifth and
Fourteenth Amendments by conspiring to create false court
records. (Id. at 2.)
to proceed in forma pauperis by pro se
plaintiffs 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)(i)-(iii)- 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 when reviewing the adequacy
of a complaint under § 1915. Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012).
Rule 12(b)(6), the court is to dismiss when the complaint
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.
review, the complaint is construed in the 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 plaintiff, as a more forgiving
standard applies to litigants not represented by counsel.
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.
2014). In addition, a pro se plaintiff must be given
notice of the deficiencies of his or her complaint, and leave
to amend, unless the opportunity to amend would be futile.
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
1995). Despite this leniency, a district court may in its
discretion dismiss an in forma pauperis complaint if
the claim "lacks an arguable basis in either law or
fact." Id. This includes claims based on
untenable legal conclusions (e.g., claims against defendants
who are immune from suit or claims of infringement of a legal
interest which clearly does not exist) or fanciful factual
allegations (e.g., fantastic or delusional scenarios).
amended complaint fails to correct the defects identified in
this court's prior screening order. First, plaintiff
cites to West, 487 U.S. 42 in order to establish the
elements of a § 1983 claim. However, the amended
complaint does not adequately allege that defendants acted
under color of state law, as is required to state a claim
under § 1983. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988). "[A]
defendant in a § 1983 suit acts under color of state law
when he abuses the position given to him by the State. Thus,
generally, a public employee acts under color of state law
while acting in his official capacity or while exercising his
responsibilities pursuant to state law." West,
487 U.S. at 50 (internal citations omitted). Private
attorneys are not classified as acting under color of state
law. See Keane v. Artz, 162 F.App'x 748, 749-50
(9th Cir. 2006). Plaintiff does not provide facts to suggest
that defendants were acting under the color of state law.
See West, 487 U.S. at 50. As pled, plaintiff does
not satisfy the first element of a § 1983 claim which
requires defendants to act under the color of state law.
Defendants are private attorneys and are not exercising their
responsibilities pursuant to state law. Therefore,
defendants' alleged actions cannot be determined to fall
under the color of state law.
the court construes plaintiffs complaint liberally, even
"a liberal interpretation of a civil rights complaint
may not supply essential elements of the claim that were not
initially pled." Bruns v. Nat'l Credit Union
Admin., 122. F.3d 1251, 1257 (9th Cir. 1997). For all
the foregoing reasons, plaintiff has failed to state a
colorable § 1983 claim against any of the named
defendants, and the amended complaint must be dismissed.
While mindful that pro se litigants are generally
entitled to notice of the deficiencies in the complaint and
an opportunity to amend, Cato, 70 F.3d at 1106, the
court concludes that further leave to amend would be futile
in this case. Plaintiff was previously advised of the
applicable legal standards and granted the opportunity to
cure the defects discussed above. (See ECF No; 3.)
Plaintiff was either unable or unwilling to do so. Therefore,
plaintiffs amended complaint and this action should be
dismissed without leave to amend. See, e.g., Frank v.
City of Henderson, 2015 WL 5562582, at *5 (D. Nev. Sept.
21, 2015) (finding further leave to amend futile where
plaintiffs amended complaint and again failed to allege
sufficient facts to support § 1983 claim); Piovo v.
Stone, No. 2:13-cv-01922-APG-GWF, 2015 WL 1014344, at *3
(D. Nev. March 9, 2015) (dismissing without leave to amend
where plaintiff failed "to adequately allege a federal
claim despite being given three opportunities to do
parties are advised:
1. 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 ...