United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION RE: PETITION FOR
DECLARATORY JUDGEMENT AND INJUNCTIVE RELIEF (ECF NO.
J. YOUCHAH UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Joseph Coppola's Application to
Proceed In Forma Pauperis (ECF No. 4). Plaintiff
previously filed a Petition for Declaratory and Injunctive
Relief (EFC No. 1-1), which was held in abeyance during the
period of time Plaintiff was given to amend his In Forma
Pauperis Application. Plaintiff's Application is now
complete. Accordingly, the request to proceed in forma
pauperis is granted pursuant to 28 U.S.C. §
SCREENING THE COMPLAINT
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, fail 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.” 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 Atl. 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).
DEFENDANTS NAMED IN PLAINTIFF'S FILING
claim appears to be that his Second Amendment rights were
violated when he was charged with and sentenced for
violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
However, as stated by the United States Supreme Court in
District of Columbia v. Heller, 554 U.S. 570, 626-67
(2008), “Although we do not undertake an exhaustive
historical analysis today of the full scope of the Second
Amendment, nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding
the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.” See
also U.S. v. Vongxay, 594 F.3d 1111, 1115-16 (9th Cir.
2010); United States v. Nichols, 124 F.3d 1265, 1266
(11th Cir.1997) (“held that § 922(g)(1) is not an
unconstitutional exercise of Congress's power under the
Commerce Clause”); see also United States
v. McAllister, 77 F.3d 387, 390 (11th Cir.1996) (holding
that § 922(g)(1) was not unconstitutional as applied to
a defendant who only possessed a firearm intrastate because
“§ 922(g) is an attempt to regulate guns that have
a connection to interstate commerce”). Likewise, Nevada
law prohibits a felon from possessing “any firearm,
” “loaded or unloaded and operable or
inoperable.” NRS 202.360(1)(a). Thus, even assuming,
for argument sake only, Plaintiff could state a claim against
the named defendants, Plaintiff fails to allege a claim that
is actionable. No. declaratory or injunctive relief is
available to Plaintiff based on an alleged violation of the
Second Amendment to the U.S. Constitution.
HEREBY ORDERED that Plaintiff s Application to Proceed In
Forma Pauperis (ECF No. 4) is compliant with federal
statutory requirements and on that basis is GRANTED.
HEREBY RECOMMENDED that Plaintiffs Petition for Declaratory
and Injunctive Relief be DENIED with prejudice as Plaintiff
fails to state a claim upon which relief may be granted and
there is no amendment to the facts or claims asserted that
would result in a different outcome.
to Local Rule IB 3-2, any objection to this Finding and
Recommendation must be in writing and filed with the Clerk of
the Court within fourteen (14) days. 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 ...