Newton v. State of Nevada

Filing 14

ORDER that 10 Motion/Application for Leave to Proceed in forma pauperis is granted. REPORT AND RECOMMENDATION that Plaintiff's claims against the State of Nevada be dismissed with prejudice for failure to state a claim upon which relief can be granted. Objections to R&R due by 8/3/2017. Signed by Magistrate Judge George Foley, Jr on 7/20/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES NEWTON,

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Plaintiff,
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vs.
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STATE OF NV,
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Defendant.
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__________________________________________)

Case No. 2:16-cv-01672-APG-GWF
REPORT AND
RECOMMENDATION
Application to Proceed in Forma
Pauperis (ECF No. 10) and Screening
of Complaint (ECF No. 1)

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This matter is before the Court on Plaintiff’s Application for Leave to Proceed in forma
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pauperis (ECF No. 10), filed on August 25, 2016.
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BACKGROUND
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Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendant
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State of Nevada has violated his civil rights by subjecting him to double jeopardy, loss of wages,
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unjust and unconstitutional confinement, and cruel and unusual punishment. Plaintiff alleges that
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the State of Nevada violated his constitutional rights found in the double jeopardy clause of the 5th
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Amendment, and the due process clause of the 14th Amendment. Plaintiff seeks general and
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compensatory relief.
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DISCUSSION
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I.

Application to Proceed In Forma Pauperis

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Plaintiff filed this instant action and attached a financial affidavit to his application and
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complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff’s financial affidavit pursuant to
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28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result,
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Plaintiff's request to proceed in forma pauperis in federal court is granted.

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II.

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Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to

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dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which

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relief may be granted, or seeks monetary relief from a party who is immune from such relief. 28

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U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for failure to state a

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claim upon which relief may be granted “if it appears beyond a doubt that the plaintiff can prove no

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set of facts in support of his claims that would entitle him to relief.” Buckey v. Los Angeles, 968

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F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed as frivolous if it is premised on a

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nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327–28

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(1989). Moreover, “a finding of factual frivolousness is appropriate when the facts alleged rise to

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the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts

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available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). When a court

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dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint

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with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the

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deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th

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Cir. 1995).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint

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for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d

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719, 723 (9th Cir. 2000). A properly pled complaint must provide a “short and plain statement of

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the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v.

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Twombley, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations,

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it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause

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of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) citing Papasan v. Allain, 478 U.S. 265,

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286 (1986). The court must accept as true all well-pled factual allegations contained in the

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complaint, but the same requirement does not apply to legal conclusions. Iqbal, 129 S.Ct. at 1950.
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Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not

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suffice. Id. at 1949. Secondly, where the claims in the complaint have not crossed the line from

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plausible to conceivable, the complaint should be dismissed. Twombly, 550 U.S. at 570.

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The Court shall liberally construe a complaint by a pro se litigant. Eldridge v. Block, 832

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F.2d 1132, 1137 (9th Cir. 2007). This is especially important for civil rights complaints. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, a liberal construction may not be used to

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supply an essential element of the claim absent from the complaint. Bruns v. Nat’l Credit Union

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Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Board of Regents, 673 F.2d 266, 268

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(9th Cir. 1982).

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III.

Instant Complaint
Plaintiff alleges that Defendant’s actions surrounding his arrest and imprisonment for

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lifetime supervision violations after he had already served a 48 to 144 month sentence constitute

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cruel and unusual punishment as well as unjust and unconstitutional confinement under the 5th

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Amendment to the United States Constitution. Plaintiff further asserts that the arrests and

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imprisonment occurred without due process under the 14th Amendment.

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42 U.S.C. § 1983 creates a path for the private enforcement of substantive rights created by

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the Constitution and federal statutes. Graham v. Connor, 490 U.S. 386, 393-94 (1989). In order to

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state a claim under § 1983, a plaintiff “must allege the violation of a right secured by the

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Constitution and the laws of the United States, and must show that the alleged deprivation was

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committed by a person acting under color of law.” West v. Atkins, 487 U.S. 42, 48-49 (1988); see

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also Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). A person acts under “color of law” if he

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“exercise[s] power possessed by virtue of state law and made possible only because the wrongdoer

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is clothed with the authority of state law.” West, 487 U.S. at 49.

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States, and any governmental agency that is an arm of the state, are not a “person” for

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purposes of § 1983. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997);

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Hale v. Arizona, 993 F.2d 1387, 1399 (9th Cir. 1993). Section 1983 lawsuits filed against states are

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legally frivolous because they are barred by the Eleventh Amendment. Jackson v. State of Ariz., 885

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F.2d 639, 641 (9th Cir. 1989) superseded on other grounds by statute as stated in Lopez v. Smith,
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203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). “The Judicial power of the United States shall not

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be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

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United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.

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Const. Amend. XI. Although the text of the Eleventh Amendment does not explicitly so indicate, it

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grants a state immunity from suit by its own citizens, as well. Hans v. Louisiana, 134 U.S. 1, 10

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(1890).

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Plaintiff alleges that Defendant violated his 5th and 14th amendment rights by arresting him

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and imprisoning him for repeated violations of Plaintiff’s lifetime supervision. Plaintiff brings his

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complaint under the auspices of § 1983. However, Plaintiff fails to name a person or government

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actor acting under color of law as a defendant. The State of Nevada is not a “person” for purposes

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of § 1983. Therefore, Plaintiff’s claims against the State of Nevada lack an arguable legal basis and

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the Court will recommend that they be dismissed with prejudice. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Application for Leave to Proceed in forma

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pauperis (ECF No. 10) is granted. Plaintiff shall not be required to pre-pay the full filing fee of

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four hundred dollars ($400.00).

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IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to

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conclusion without the necessity of prepayment of any additional fees or costs or the giving security

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therefor. This Order granting leave to proceed in forma pauperis shall not extend to the issuance of

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subpoenas at government expense.

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RECOMMENDATION

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IT IS HEREBY RECOMMENDED that Plaintiff’s claims against the State of Nevada be
dismissed with prejudice for failure to state a claim upon which relief can be granted.

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be

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in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has

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held that the courts of appeal may determine that an appeal has been waived due to the failure to file

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objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also

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...
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held that (1) failure to file objections within the specified time and (2) failure to properly address

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and brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal

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factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.

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1991).

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DATED this 20th day of July, 2017.

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GEORGE FOLEY, JR.
United States Magistrate Judge

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