United States District Court, D. Nevada
SCREENING ORDER AND REPORT AND
HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE
plaintiff Benjamin Holly brings this civil-rights case under
42 U.S.C. § 1983 against his former landlord for
allegedly being biased against him and evicting him from his
trailer. Holly moves to proceed in forma pauperis.
(IFP Application (ECF No. 7).) Holly submitted the affidavit
required by 28 U.S.C. § 1915(a) showing an inability to
prepay fees or costs or give security for them. Holly's
request to proceed in forma pauperis therefore will
be granted. The court now screens Holly's complaint (ECF
No. 1-1) as required by 28 U.S.C. § 1915(e)(2).
granting a request to proceed in forma pauperis, a
court must screen the complaint under 28 U.S.C. §
1915(e)(2). In screening the complaint, a court must identify
cognizable claims and dismiss claims that are frivolous,
malicious, file to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Dismissal for failure to state a claim under §
1915(e)(2) incorporates the standard for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). To survive § 1915 review, a complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The court liberally construes pro se complaints
and may only dismiss them “if it appears beyond doubt
that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.”
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave to amend
the complaint with notice regarding the complaint's
deficiencies. Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995).
Screening the complaint
alleges that he and his wife rented a trailer from the Morse
family. (Compl. (ECF No. 1-1) at 3.) Holly states that the
Morse family had him wrongfully arrested and imprisoned and
evicted from the trailer. (Id.) Specifically, he
alleges the Morses called the Nye County Sheriff's
Department and informed it that Holly had a “f.t.a.,
” which the court understands to mean a “failure
to appear, ” resulting in deputies breaking into his
trailer without a warrant and arresting him. (Id. at
5.) He further alleges the Morses evicted him from the
trailer. (Id. at 4.) Finally, he alleges the Morses
made racial slurs against him and stated that they did not
want black people on their property. (Id. at 6.)
Holly does not state when these actions occurred. Across
three claims, Holly now sues Larry Morse, Rita Morse, and
Rick Morse, alleging they violated his Fourth and Fifth
Amendment rights. (Id. at 4-6.)
42 U.S.C. § 1983 provides that “[e]very person
who, under color of [law], subjects, or causes to be
subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .” Section 1983 does
not create any substantive rights, but it provides a method
for enforcing rights contained in the Constitution or federal
statutes. Crowley v. Nev. ex. rel. Nev. Sec'y of
State, 678 F.3d 730, 734 (9th Cir. 2012). To state a
claim under 42 U.S.C. § 1983, a plaintiff must allege
“(1) the defendants acting under color of state law (2)
deprived plaintiffs of rights secured by the Constitution or
federal statutes.” Williams v. California, 764
F.3d 1002, 1009 (9th Cir. 2014) (quotation omitted).
private parties are not acting under color of state law.
See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir.
conduct of a private individual constitutes state action when
there is a such a close nexus between the State and the
challenged action that the individual's conduct may be
fairly treated as that of the State itself, such as when the
nominally private actor is controlled by an agency of the
State, when it has been delegated a public function by the
State, when it is entwined with governmental policies, or
when government is entwined in its management or control.
Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d
1143, 1150 (9th Cir. 2011) (quotations omitted). Further,
“[a] private individual may be liable under § 1983
if she conspired or entered joint action with a state
actor.” Crowe v. Cty. of San Diego, 608 F.3d
406, 440 (9th Cir. 2010) (quotation omitted).
the court finds Holly does not state a claim under §
1983 because he does not allege that Larry Morse, Rita Morse,
and Rick Morse were acting under color of state law when they
called the sheriff's department, evicted him, and used
racial slurs against him. Rather, even liberally construing
the complaint it appears the defendants are private
individuals, not state actors. Holly does not allege any
facts indicating that there was a nexus between state actors
and the Morses or a delegation of authority from state actors
to the Morses. Nor does Holly allege facts indicating that
there was a conspiracy between state parties and the Morses.
Given these deficiencies, the court will recommend dismissal
of the complaint with leave to amend.