United States District Court, D. Nevada
ORDER APPLICATION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS [ECF NO. 1] AND COMPLAINT [ECF NO. 1-1]
FERENBACH, UNITED STATES MAGISTRATE JUDGE
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.
FORMA PAUPERIS APPLICATION
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. §
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)
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).
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).
§ 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
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.
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.
IT IS ORDERED that Plaintiffs Application to Proceed In
Forma Pauperis (ECF No. 1) is GRANTED.
FURTHER ORDERED that the Clerk of Court shall file the
Complaint (ECF No. 1-1).
FURTHER ORDERED that Plaintiffs Complaint (ECF No. 1-1) is