United States District Court, D. Nevada
REPORT AND RECOMMENDATION ECF NO. 1
J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff Lawrence Earl's Application
to Proceed In Forma Pauperis (ECF No. 1). Attached
to Plaintiff's in forma pauperis application is
a Complaint for Violation of Civil Rights (Non-Prisoner)
pursuant to 42 U.S.C. § 1983 (ECF No. 1-1).
IN FORMA PAUPERIS APPLICATION
Court granted Plaintiff's in forma pauperis
application in its Order (ECF No. 3) filed on October 21,
2019 (the “Order”).
SCREENING THE COMPLAINT AND FEDERAL JURISDICTION
the Court's discussion of federal jurisdiction and the
screening process applicable to Plaintiff's Complaint in
the Order (ECF No. 3).
to 28 U.S.C. § 1367(a), in any civil action in which the
district court has original jurisdiction, the district court
has supplemental jurisdiction over all other claims that are
so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution, except as provided in subsections (b) and (c).
A state law claim is part of the same case or controversy
when it shares a “common nucleus of operative
fact” with the federal claims and the state and federal
claims would normally be tried together. Trs. of the
Constr. Indus. & Laborers Health & Welfare Trust v.
Desert Valley Landscape Maint., Inc., 333 F.3d 923, 925
(9th Cir. 2003) (internal citations and quotation marks
Plaintiff's Complaint asserts a claim under Article III
of the Nevada Constitution. ECF No. 1-1 at 6. Article III of
the Nevada Constitution discusses the separation of powers of
the Government of the State of Nevada, as well as legislative
review of administrative regulations. Plaintiff's state
law claim does not share a common nucleus of operative fact
with Plaintiff's federal claims. Nor would
Plaintiff's state and federal claims normally be tried
together. Therefore, Plaintiff's state law claim does not
form part of the same case or controversy with
Plaintiff's claims under federal law and, for this
reason, the Court recommends that supplemental jurisdiction
over Plaintiff's state law claim not be exercised.
PLAINTIFF'S STATE AND FEDERAL LAW CLAIMS RECOMMENDED FOR
DISMISSAL WITH PREJUDICE.
alleges Defendants violated his constitutional rights under
Article III of the Nevada Constitution, as well as the Fifth
and Fourteenth Amendment rights under the Constitution of the
United States. None of these claims assert causes of action
upon which relief may be granted.
respect to Plaintiff's allegation of a Nevada
Constitutional claim under Article III, Plaintiff has not
pled any facts whatsoever supporting a viable cause of action
for separation of powers or legislative review of
administrative regulations. Accordingly, the Court recommends
dismissing Plaintiff's claim alleging a violation of
Article III of the Nevada Constitution with prejudice as
there is no amendment that would or could save this claim
alleges Defendants violated his Fifth Amendment rights, but
fails to identify the basis for this claim. ECF No. 1-1 at 6.
Based on the body of the Complaint, the Court construes
Plaintiff's Fifth Amendment claim as a due process claim.
Notwithstanding, “[t]he Due Process Clause of the Fifth
Amendment and the equal protection component thereof apply
only to actions of the federal government-not to those of
state or local governments.” Lee v. City of Los
Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (citing
Schweiker v. Wilson, 450 U.S. 221, 227 (1981)).
Plaintiff does not allege that any of the Defendants are
federal actors and, based on the totality of the facts,
cannot do so. For this reason, the Court recommends
dismissing Plaintiff's Fifth Amendment due process claim
with prejudice as amendment would be futile.
alleges Defendants violated his Fourteenth Amendment rights.
However, Plaintiff again fails to identify the basis for this
claim. ECF No. 1-1 at 6. A review of the Complaint
demonstrates that Plaintiffs Fourteenth Amendment claim is a
due process claim. This claim, however, is appropriately
stated under the Fourth Amendment (as stated in the Order
(ECF No. 3), which protects against unreasonable search and
seizure. Graham v. Connor,490 U.S. 386, 395 (1989)
(“[b]ecause the Fourth Amendment provides an explicit
textual source of constitutional protection against this sort
of physically intrusive governmental conduct, that Amendment,
not the more generalized notion of ‘substantive due