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Smith-Lovejoy v. State

United States District Court, D. Nevada

April 4, 2018

ANDRE SMITH-LOVEJOY, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

         This 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.

         I. IN FORMA PAUPERIS APPLICATION

         As set 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.

         II. LEGAL STANDARD

         Applications 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. 2000).

         Under 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.

         The 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).

         III. DISCUSSION

         Plaintiff 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.)

         In 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 Court.

(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.)

         A. The State of Nevada

         As an 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. ...


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