United States District Court, D. Nevada
REPORT AND RECOMMENDATION
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the screening of
Plaintiff's Amended Complaint (ECF No. 7), filed on March
March 15, 2017, the Court entered an order granting
Plaintiff's Application for Leave to Proceed in forma
pauperis and a report and recommendation that
Plaintiff's § 1983 claim against Defendant Eight
Judicial District Court be dismissed for failure to state a
claim upon which relief may be granted. See ECF No.
4. The Court, however, found that the Plaintiff sufficiently
pled a Fair Credit Reporting Act (“FCRA”) claim
against Defendant Hire Right, LLC (“Hire Right”).
Id. The Court instructed the Clerk of the Court to
issue summons to Defendant Hire Right and to deliver the
summons to the U.S. Marshal for service. Id. In
addition, the Court dismissed Plaintiff's FCRA claim
against Defendant Swift Transportation, LLC
(“Swiftt”) without prejudice and granted
Plaintiff leave to file an amended complaint. Id. On
May 3, 2017, the Court entered an order adopting the
undersigned's order and report and recommendation.
See ECF No. 14.
March 27, 2017, Plaintiff filed his amended complaint. ECF
No. 7. Upon granting a request to proceed in forma
pauperis and granting leave to amend, a court must
additionally screen a complaint pursuant to 28 U.S.C.
§1915(e). Specifically, federal courts are given the
authority to dismiss a case if the action is legally
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant/third party plaintiff who is immune from
such relief. 28 U.S.C. § 1915(e)(2). A complaint, or
portion thereof, should be dismissed for failure to state a
claim upon which relief may be granted “if it appears
beyond a doubt that the plaintiff can prove no set of facts
in support of his claims that would entitle him to
relief.” Buckey v. Los Angeles, 968 F.2d 791,
794 (9th Cir. 1992). A complaint may be dismissed as
frivolous if it is premised on a nonexistent legal interest
or delusional factual scenario. Neitzke v. Williams,
490 U.S. 319, 327-28 (1989). Moreover, “a finding of
factual frivolousness is appropriate when the facts alleged
rise to the level of the irrational or the wholly incredible,
whether or not there are judicially noticeable facts
available to contradict them.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992).
order and report and recommendation, the Court instructed
Plaintiff that if he elects to file an amended complaint, it
must be complete in itself without reference to any prior
pleading pursuant to Local Rule 15-1 and that the Court
cannot refer to a prior pleading. ECF No. 4. In his amended
complaint, Plaintiff alleges claims against Defendant Swift
only pursuant to 42 U.S.C. § 1983. He alleges that
Defendant Swift denied Plaintiff employment based on its
reliance on an inaccurate background check and, therefore,
violated his constitutional rights found in the Due Process
Clause of the 5th Amendment and the Equal Protection Clause
of the 14th Amendment. See ECF No. 7.
U.S.C. § 1983 creates a path for the private enforcement
of substantive rights created by the Constitution and Federal
statutes. Graham v. Connor, 490 U.S. 386, 393-94
(1989). In order to state a claim under § 1983, a
plaintiff “must allege the violation of a right secured
by the Constitution and the laws of the United States, and
must show that the alleged deprivation was committed by a
person acting under color of law.” West v.
Atkins, 487 U.S. 42, 48-49 (1988); see also
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). A
person acts under “color of law” if he
“exercise[s] power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
authority of state law.” West, 487 U.S. at 49.
1983 does not reach private conduct, regardless of how
discriminatory or wrongful it may be. Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999). Even involving
cases where there is extensive state funding and regulation
of a private activity, “the mere fact that a business
is subject to state regulation does not by itself convert its
action into that of the State for purposes of the Fourteenth
Amendment.” Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 350 (1974); see also
Rendell-Baker, 457 U.S. 830 at 842-43; Morse v.
North Coast Opportunities, 118 F.3 1338, 1340-41 (9th
Cir. 1997). Only where “there is a sufficiently close
nexus between the State and the challenged action of the
regulated entity” will the Court allow a defendant to
be subjected to a §1983 claim. Id. A
“close nexus” exists only where the State has
“exercised coercive power or has provided such
significant encouragement.” Id., see also
Flag Bros. Inc. v. Brooks, 436 U.S. 149, 156 (1978). The
Ninth Circuit has established a two part test to establish
whether or not an alleged infringement of federal rights is
fairly attributable to the government: “1) the
deprivation must result from a government policy, and 2) the
party charged with the deprivation must be a person who may
fairly be said to be a government actor.” Sutton v.
Providence St. Joseph Med. Center, 192 F.3d 826, 835
(9th Cir. 1999).
alleges that Defendant violated his 5th and 14th Amendment
rights by failing to conduct a proper pre-employment
screening and brings his complaint under the auspices of
§ 1983. Plaintiff fails to establish the basic elements
needed to successfully posit a claim under § 1983.
First, Plaintiff fails to state that Defendant's actions
were the result of a government policy. Second, Defendant
Swift appears to operate as a private transportation company,
and not as a government actor. Furthermore, there is no
connection between the State of Nevada and Defendant, other
than the fact that Defendant is required to operate in
accordance with state laws and regulations. Plaintiff has not
pled sufficient facts to state a claim under § 1983.
Court finds that Plaintiff cannot state a claim against
Defendant Swift and recommends dismissal of his amended
complaint (ECF No. 7). The Court previously found that
Plaintiff made a prima facie showing of inaccurate reporting
and allowed his FCRA claims against Hire Right to proceed.
See ECF No. 4. Therefore, Plaintiff's FCRA claim
against Defendant Hire Right as enumerated in his complaint
(ECF No. 5) may proceed and may continue to be litigated by
the parties. Accordingly,
IS HEREBY RECOMMENDED that Plaintiffs amended
complaint (ECF No. 7) be dismissed due to Plaintiffs failure
to state a claim against Defendant Swift.
Local Rule IB 3-2, any objection to this Finding and
Recommendation must be in writing and filed with the Clerk of
the Court within fourteen (14) days. Appeals may been waived
due to the failure to file objections within the specified
time. Thomas v. Arn,474 U.S. 140, 142 (1985).
Failure to file objections within the specified time or
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