United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, 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 plaintiff's application to
proceed in forma pauperis be granted, and that the
complaint be dismissed.
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
plaintiff's application, the court finds that plaintiff
is unable to pay the filing fee in this matter. The court
therefore 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).
brings this action pursuant to 42 U.S.C. § 1983 against
the State of Nevada, Nike Shoe Company (“Nike”),
and Smith's Food and Drug Stores
(“Smith's”). (ECF No. 1-1 at 1.) Due to the
limited and vague accusation set forth in the complaint, it
is unclear exactly what brings plaintiff into federal court.
From what the court can discern, plaintiff's complaint
seems to concern federal, and possibly state, taxation.
(See Id. at 2-3.)
naming the defendants, plaintiff appears to state that he is
suing them for tax evasion, but they are not otherwise
mentioned in the complaint. (Id. at 2.) The body of
the complaint reads simply:
The United States of America is forcing me Andre
Smith-Lovejoy to pay taxes each year. I get no tax returns
annually or quarterly statements (2b(1) U.S. Laws [)]. This
violation the U.S. does is over $10, 000.00 making the matter
a felony on the United States of America. Federal Rules of
(Id. at 3.) Given plaintiff's allegations, the
court will consider the liability of United States for the
purposes of screening this action. Hebbe v. Pliler,
627 F.3d 338, 342 (9th Cir. 2010) (courts must construe
pro se complaints liberally). Finally, in his
request for relief, plaintiff states that he is entitled to
the following remedies under the Fifth Amendment: (1) a
contract for one million dollars, (2) “annual or
quarterly percentages, ” and, (3) a license.
(Id. at 9.)
The State of Nevada
initial matter, plaintiff's claim against the State of
Nevada must be dismissed because it is not amenable to suit.
Section 1983 “provides a federal cause of action
against any person who, acting under color of state
law, deprives another of his federal rights.” Conn
v. Gabbert, 526 U.S. 286, 290 (1999) (emphasis added). A
state is not a person for purpose of section 1983. Will
v. Mich. Dep't of State Police, 491 U.S. 58, 70
(1989). Thus, the court recommends that plaintiff's claim
against the State of Nevada be dismissed because “it
lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The
court recommends that dismissal be with prejudice because
plaintiff can make no factual or legal amendments that would
expose the State of Nevada to liability under section 1983.
Cato, 70 F.3d at 1107; see Patterson v. Oregon
Dep't of Revenue, No. ...