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Glaster v. 7 Eleven

United States District Court, D. Nevada

June 10, 2019

ABMAN GLASTER, Plaintiff,
v.
7 ELEVEN., et al, Defendants.

          ORDER APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS [ECF NO. 1] AND COMPLAINT [ECF NO. 1-1]

          CAM FERENBACH, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiff Abman Glaster's Application for Leave to Proceed in forma pauperis (ECF No. 1) and complaint (ECF No. 1-1). For the following reasons, Plaintiffs application to proceed in forma pauperis is granted. The Court, however, orders that Plaintiffs complaint be dismissed without prejudice.

         IN FORMA PAUPERIS APPLICATION

         Under 28 U.S.C. § 1914(a), a filing fee is required to commence a civil action in federal court. The Court may authorize individuals to commence an action without prepayment of fees and costs if they file an application to proceed in forma pauperis. 28 U.S.C. § 1915(a)(1).

         According to his application to proceed in forma pauperis, Plaintiff receives no income and has no property of value. (ECF No. 1). Plaintiff s complaint indicates that he is homeless. (ECF No. 1-1 at 2). Therefore, Plaintiffs application to proceed in forma pauperis (ECF No. 1) is granted.

         SECTION 1915(e) SCREENING

          Under 28 U.S.C. § 1915(e), upon granting a request to proceed in forma pauperis, a court must screen a complaint. The Court is 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 who is immune from such relief. 28 U.S.C. § 1915(e)(2). "A complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). All material allegations in the complaint are accepted as true and are to be construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). "A district court should not dismiss a pro se complaint without leave to amend unless 'it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.1988).

         Plaintiff seeks to bring a 42 U.S.C. § 1983 civil rights claim against the owners and employees of two 7 Elevens and a Golden Day Adult Day Care. (ECF No. 1-1 at 1). Plaintiff asserts the Defendants "while acting under color of state law," violated Plaintiffs constitutional rights by discriminating against him on the basis of his disability and homeless status. (Id. at 2-8). Plaintiff also alleges that Defendants were "acting in conjunction with others retaliating against Plaintiff for filing a civil action against Clark County." (Id. at 5, 9).

         A § 1983 claim must be brought against a person acting with the influence of state law. 42 U.S.C §1983. "The Supreme Court has articulated four tests for determining whether a private [party's] actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion test; and (4) the governmental nexus test." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (quoting Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir.2002)).

         Plaintiff fails to state how any of the Defendants, apparently private individuals and entities, have acted under the color of state law. Plaintiff mentions a potential connection with Clark County (ECF No. 1-1 at 5, 9), but does not explain how Defendants' alleged discrimination against Plaintiff can be attributed to the government.

         Plaintiff has failed to state a claim upon which relief may be granted. However, the complaint's deficiencies may be cured by amendment. Therefore, Plaintiffs complaint (ECF No. 1-1) is hereby dismissed without prejudice.

         ACCORDINGLY, IT IS ORDERED that Plaintiffs Application to Proceed In Forma Pauperis (ECF No. 1) is GRANTED.

         IT IS FURTHER ORDERED that the Clerk of Court shall file the Complaint (ECF No. 1-1).

         IT IS FURTHER ORDERED that Plaintiffs Complaint (ECF No. 1-1) is ...


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