Chatman v. AM/PM et al

Filing 6

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED.REPORT AND RECOMMENDATION that plaintiff's complaint (ECF No. 1 -1) be DISMISSED WITHPREJUDICE as time-barred.FURTHER RECOMMENDED that plaintiff's motion for appointment of counsel (ECF No. 5 ) be DENIED as moot. Objections to R&R due by 6/8/2018. Signed by Magistrate Judge Carl W. Hoffman on 5/25/2018. (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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ERIC CHATMAN,

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Plaintiff,
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vs.
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AM/PM, et al.,
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Defendants.
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__________________________________________)

Case No. 2:18-cv-00451-RFB-CWH
SCREENING ORDER AND
REPORT AND
RECOMMENDATION

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Pro se plaintiff Eric Chatman is a California state-prison inmate. On March 12, 2018, Mr.

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Chatman submitted a civil rights complaint under 42 U.S.C. § 1983 (ECF No. 1-1) and an

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application to proceed in forma pauperis (ECF No. 1). Mr. Chatman has submitted the declaration

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required by 28 U.S.C. § 1915(a) showing an inability to prepay fees and costs or give security for

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them. Accordingly, Mr. Chatman’s request to proceed in forma pauperis will be granted.

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Upon granting a request to proceed in forma pauperis, a court must screen the complaint

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under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims

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and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be

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granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for

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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d

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1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only

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dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his

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claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)

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(quoting Iqbal, 556 U.S. at 678).

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In considering whether the complaint is sufficient to state a claim, all allegations of material

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fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit

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P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although

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the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must

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provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is

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clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should

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be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Here, Mr. Chatman alleges that in 2005-06 he was harassed, kidnapped, “dressed to kill,”

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and robbed at the AM/PM in front of Bally’s Casino in Las Vegas, Nevada. (Compl. (ECF No. 1-

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1) at 1-2.) Mr. Chatman alleges that these incidents took place in a vehicle and that he was targeted

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because he was homeless. (Id. at 2-3.) He further alleges that he was a “handsome guy, beautiful

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guy” and that he was injured so badly he requires a facelift. (Id. at 3.) Mr. Chatman claims that the

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incident lasted for one hour, that he could have died, and that he will have nightmares of this

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incident forever. (Id. at 3, 5.) Mr. Chatman brings what the court understands to be tort claims for

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his injuries under 42 U.S.C. § 1983 against AM/PM, Bally’s Casino, and Chivas Regal. (Id. at 2-

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6.) Mr. Chatman requests monetary damages in the millions. (Id. at 9.)

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Given that 42 U.S.C. § 1983 does not contain a specific statute of limitations, federal courts

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borrow state statutes of limitations for personal injury actions in § 1983 suits. Alameda Books, Inc.

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v. City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (“The statute of limitations applicable

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to an action pursuant to 42 U.S.C. § 1983 is the personal injury statute of limitations of the state in

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which the cause of action arose.”) The Nevada limitations period applicable in this case is two

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years. See Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989) (per curiam) (citing Nev. Rev. Stat.

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11.190(4)).

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Mr. Chatman’s complaint was filed on March 12, 2018. Applying Nevada’s two-year

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limitations period, any acts that occurred more than two years before that date are time-barred.

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Given that these incidents described in this complaint occurred in 2005-06, which is outside of the
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two-year limitations period, the court will recommend dismissal with prejudice of Mr. Chatman’s

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claims.

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IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma pauperis
(ECF No. 1) is GRANTED.
IT IS RECOMMENDED that plaintiff’s complaint (ECF No. 1-1) be DISMISSED WITH
PREJUDICE as time-barred.
IT IS FURTHER RECOMMENDED that plaintiff’s motion for appointment of counsel
(ECF No. 5) be DENIED as moot.

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NOTICE

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This report and recommendation is submitted to the United States district judge assigned to

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this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation may

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file a written objection supported by points and authorities within fourteen days of being served

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with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may

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waive the right to appeal the District Court’s Order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th

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Cir. 1991).

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DATED: May 25, 2018

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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