United States District Court, D. Nevada
REPORT AND RECOMMENDATION APPLICATION TO PROCEED IN
FORMA PAUPERIS [ECF NO. 1] AND COMPLAINT [ECF NO.
FERENBACH, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Abman Glaster's application to
proceed in forma pauperis (ECF No. 1) and complaint
(ECF No. 1-1). For the reasons discussed below, this case
should be dismissed and Plaintiff's application to
proceed in forma pauperis (ECF No. 1) should be
denied as moot.
16, 2019, Plaintiff filed an application to proceed in
forma pauperis and complaint in No.
2:19-cv-00842-GMN-VCF. (ECF Nos. 1, 1-1). The complaint
brought a 42 U.S.C. § 1983 civil rights claim against
the owners and employees of two 7 Elevens and a Golden Days
Adult Day Care. (ECF No. 4 at 1). The Court granted the
application to proceed in forma pauperis and
dismissed the complaint with leave to amend, finding that
Plaintiff “fails to state how any of the Defendants,
apparently private individuals and entities, have acted under
the color of state law.” (ECF No. 3 at 2-3).
12, 2019, Plaintiff filed an Amended Complaint against only
the 7 Eleven Defendants. (ECF No. 5). In screening the
Amended Complaint, I recommended that it be dismissed with
prejudice because “Plaintiff again fails to state how
Defendants, private individuals and entities with no apparent
connection to the government, have acted under the color of
state law.” (ECF No. 6 at 2). My Report and
Recommendation is pending.
12, 2019, Plaintiff also filed a complaint in this new case,
No. 2:19-cv-01223-RFB-VCF, against employees and owners of
Defendant Golden Days Adult Daycare. (ECF No. 1-1). Though
the complaint is difficult to read, it appears that Plaintiff
alleges that Defendant discriminated against him and refused
to provide service to him. (Id.). Plaintiff seeks to
bring a 42 U.S.C. § 1983 claim against Golden Days Adult
Daycare. (ECF No. 1-2). This is consistent with
Plaintiff's original complaint in No.
2:19-cv-00842-GMN-VCF. (ECF No. 1-1 at 4, 5).
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). “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).
§ 1983 claim must be brought against a person acting
under color of state law. 42 U.S.C §1983. Plaintiff
again fails to state how Defendants, private individuals and
entities with no apparent connection to the government, have
acted under the color of state law. Plaintiff has failed to
state a claim upon which relief may be granted. Because
allowing an additional opportunity to amend the complaint
would be futile, the case should be dismissed.
and for good cause shown, IT IS RECOMMENDED that this case be
DISMISSED and Plaintiff's application to proceed in
forma pauperis (ECF No. 1) be DENIED as moot.
to Local Rules IB 3-1 and IB 3-2, a party may object to
orders and reports and recommendations issued by the
magistrate judge. Objections must be in writing and filed
with the Clerk of the Court within fourteen days. LR IB 3-1,
3-2. The Supreme Court has held that the courts of appeal may
determine that an appeal has been waived due to the failure
to file objections within the specified time. Thomas v.
Arn, 474 U.S. 140, 142 (1985). This circuit has also
held that (1) failure to file objections within the specified
time and (2) failure to properly address and brief the
objectionable issues waives the right to appeal the District
Court's order and/or appeal factual issues from the order
of the District Court. Martinez v. Ylst, 951 F.2d
1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United
Sch. Dist, 708 F.2d 452, 454 (9th Cir. 1983).
to LR IA 3-1, the Plaintiff must immediately file written
notification with the court of any change of address. The
notification must include proof of service upon each opposing
party of the party's attorney. ...