United States District Court, D. Nevada
CHARLES N. BELSSNER, Plaintiffs,
BANK OF AMERICA, et al., Defendants.
REPORT AND RECOMMENDATION
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
August 1, 2017, the Court dismissed Plaintiff's complaint
with leave to amend for failing to comply with Rule 8 of the
Federal Rules of Civil Procedure. Docket No. 4. The Court
advised Plaintiff that a properly pled complaint must provide
a short and plain statement of the claims showing that the
pleader is entitled to relief. Id. at 2 (citing
Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Moreover,
“[a]lthough Rule 8 does not require detailed factual
allegations, it demands ‘more than labels and
conclusions' or a ‘formulaic recitation of the
elements of a cause of action.'” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “[T]o comply with Rule 8, a complaint must set
forth coherently who is being sued, for what relief, and on
what theory, with enough detail to guide discovery.”
Id. at 2-3 (citing McHenry v. Renne, 84
F.3d 1172, 1178 (9th Cir. 1995)). The Court noted that, while
the pleadings of pro se litigants are to be
construed liberally, such litigants must still comply with
the basic requirements of Rule 8. Id. at 3 n.1
(citing Montgomery v. Las Vegas Metropolitan Police
Dept., 2014 WL 3724213, at *3 n.3 (D. Nev. July 28,
2014)). The Court also made clear that
“[f]ailure to comply with this order will
result in the recommended dismissal of this
case.” Id. at 4 (emphasis in
pending before the Court is Plaintiff's amended
complaint. Docket No. 7. The amended complaint takes a
kitchen-sink approach, purporting to bring claims for
violations of: (1) “Protective Clauses 2, ” (2)
“the Federal Whistleblowing and Retaliation Laws,
” (3) the “Federal Labor Standard Act, ”
(4) the “False Claims Act, ” (5) the
“Retaliation Claim” statutes, (6) the American
with Disabilities Act, (7) the United States Constitution,
the “Housing and Urban Development Federal Housing
Authority, ” and (9) the Fair Credit Reporting Act.
See Docket No. 7 at 2. In support of these claims, the
Court understands the basic gist of Plaintiff's grievance
to be that he alleges that he is disabled, that he spent 2
½ years attempting to obtain a mortgage from Defendant
Bank of America, and that the mortgage application was denied
as incomplete when Bank of America asserted that it could not
confirm a residential address for Plaintiff. See Id.
at ¶¶ 17-19. Nonetheless, the amended complaint
fails to set forth in any meaningful way how such alleged
facts state a claim for any particular cause of action. In
this way, the amended complaint continues to fail to comply
with Rule 8. As such, the amended complaint should be
respect to giving Plaintiff leave to amend, the Court is
mindful that a plaintiff should be given leave to amend the
complaint with directions as to curing its deficiencies,
unless it is clear that the deficiencies can not be cured by
amendment. See, e.g., Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995). Leave to
amend is not automatic, however, and “the district
court's discretion to deny leave to amend is particularly
broad where plaintiff has previously amended the
complaint.” City of Los Angeles v. San Pedro Boat
Works, 635 F.3d 440, 454 (9th Cir. 2011) (quoting
Ascon Props., Inc. v. Mobile Oil Co., 866 F.2d 1149,
1160 (9th Cir. 1989)). Here, the Court has already provided
Plaintiff with an opportunity to amend his complaint to
comply with Rule 8 and, instead of clarifying his claims and
the factual allegations supporting them, Plaintiff instead
added even more claims based on the same basic recitation of
his factual allegations. Compare Docket No. 7
with Docket No. 5. Moreover, he did so even after
the Court warned him that failure to comply would result in a
recommendation of dismissal. See Docket No. 4 at 4.
As such, it appears there is no less drastic remedy that
dismissing this case without further opportunities to amend.
Cf. Montgomery, 2014 WL 3724213, at *2, 3-4
(dismissing with prejudice ill-pled claims that failed to
comply with Rule 8 given previous opportunities to amend and
warning that failure to comply would result in dismissal).
the undersigned RECOMMENDS that this case be
DISMISSED without any further opportunities
to Local Rule IB 3-2, any objection to this Report and
Recommendation must be in writing and filed with the Clerk of
the Court within fourteen (14) days. The Supreme Court has
held that the courts of appeal may determine that an appeal
has been waived due to the failure to file objections within
the specified time. Thomas v. Arn, 474 U.S. 140, 142
(1985). This circuit has also held that (1) failure to file
objections within the specified time and (2) failure to
properly address and brief the objectionable issues waives
the right to appeal the District Court's order and/or
appeal factual issues from the order of the District Court.
Martinez v. Y1st, 951 F.2d 1153, 1157 (9th Cir.
1991); Britt v. Simi Valley United Sch. Dist, 708
F.2d 452, 454 (9th Cir. 1983).
 The Constitution does not itself
create a right of action, so the Court construes this claim
as attempting to bring a claim for alleged constitutional
violations pursuant to 42 U.S.C. § 1983. See,
e.g., Emrit v. Sandoval, 2015 WL 669041, at *2
(citing Azul-Pacifico, Inc. v. City of Los Angeles,
973 F.2d 704, 705 (9th Cir. 1992)).
 Plaintiff also references at times
“Deceptive Business Practices.” See,
e.g., Docket No. 7 at ¶ 17. To the extent Plaintiff
is attempting to bring a claim under the Federal Trade
Commission Act, see Id. at ¶ 15, he has already
been informed by this Court that such act does not provide a
private right of action, Belssner v. One Nevada Credit
Union, 2017 WL ...