Gaines v. Manzanitas

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 KWAME GAINES, Case No. 2:21-cv-02029-APG-EJY 5 Plaintiff, ORDER 6 v. and 7 KATHERINE MANZANITAS, HOME ASSOCIATION, OWNER MANAGER OF 8 UNIT 1167, REPORT AND RECOMMENDATION 9 Defendants. — 10 — 11 Pending before the Court is Plaintiff’s application to proceed in forma pauperis (“IFP”) and 12 Complaint. ECF Nos. 1 and 1-1. Plaintiff’s IFP application is complete and is granted, but Plaintiff’s 13 Complaint fails to state any claim upon which relief may be granted. 14 I. Screening the Complaint 15 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 16 under 28 U.S.C. § 1915 (e)(2). In screening the complaint, a court must identify cognizable claims 17 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted 18 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2). 19 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 20 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108 , 1112 21 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 22 accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 23 U.S. 662 , 678 (2009). The court liberally construes pro se complaints and may only dismiss them 24 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 25 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 26 556 U.S. at 678). 27 In considering whether the complaint is sufficient to state a claim, all allegations of material 1 v. Turner Broad. Sys. Inc., 135 F.3d 658 , 661 (9th Cir. 1998) (citation omitted). Although the 2 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 3 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 4 A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 5 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 6 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. United 7 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 8 II. Finding Regarding Plaintiff’s Complaint 9 Plaintiff’s Complaint identifies one defendant—a woman named Katherine—who is 10 apparently the manager of the homeowner’s association at Manzanitas. Plaintiff appears to argue 11 two of his cars were towed and he was evicted from an address by Katherine. However, Plaintiff’s 12 allegations fail to state a claim upon which relief may be granted. 13 To state a claim under section 1983, a plaintiff must allege that: (1) defendant was acting 14 under color of state law at the time the complained of act was committed; and (2) defendant’s 15 conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of 16 the United States. 42 U.S.C. § 1983 ; see West v. Atkins, 487 U.S. 42, 48 (1988). With respect to the 17 second element of the § 1983 test, Plaintiff’s allegations regarding his supposed eviction and towing 18 of his cars, to the extent they are understood by the Court, include no facts supporting the conclusion 19 that either claim states a violation of rights secured by the Constitution or laws of the United States. 20 See Tornheim v. Eason, 363 F.Supp.2d 674, 677 (S.D.N.Y. 2005) (in which a sheriff’s department 21 executes an order to evict, there is no violation of federal or constitutional law). 22 With respect to the first element of the § 1983 test, a plaintiff may attribute a private actor’s 23 conduct to the State under one of three theories: the “state compulsion” test, also known as the 24 “government nexus” test; the “joint action” test; or the “public functions” test. Caviness v. Horizon 25 Cmty. Learning Ctr., Inc., 590 F.3d 806, 812, 816 (9th Cir. 2010); see also Blum v. Yaretsky, 457 26 U.S. 991 , 1004 (1982) (state compulsion); Rendell–Baker v. Kohn, 457 U.S. 830, 842 (1982) (public 27 functions). Here, while Plaintiff asserts that Defendant was acting under color of state law, he pleads 1 no facts to support this conclusory assertion. In sum, Plaintiff’s conclusory allegations are 2 insufficient to support a § 1983 claim. 3 III. Order 4 IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In Forma 5 Pauperis (ECF No. 1) is GRANTED. 6 IV. Recommendation 7 IT IS HEREBY RECOMMENDED that Plaintiff’s Complaint (ECF No. 1-1) be dismissed 8 without prejudice to allow Plaintiff to bring his claims in State Court if he chooses to do so. 9 Plaintiff’s alleged wrongful eviction claim and contentions that his cars were towed may allege state 10 law claims, but there is no factual basis for a Constitutional violation or violation of federal law that 11 would bring this claim within the confines of 42 U.S.C. § 1983 . 12 Dated this 22nd day of November, 2021. — 13 — — 14 — 15 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE — 16 — — 17 — 18 NOTICE 19 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be 20 in writing and filed with the Clerk of the Court within fourteen (14) days. In 1985, the Supreme 21 Court held that the courts of appeal may determine that an appeal has been waived due to the failure 22 to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). The Ninth 23 Circuit has also held that (1) failure to file objections within the specified time and (2) failure to 24 properly address and brief the objectionable issues waives the right to appeal the District Court’s 25 order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 26 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452 , 454 (9th Cir. 1983). — 27 —