Gordon v. State of Nevada Department of Busines and Industry et al

Filing 4

ORDER granting 1 Application for Leave to Proceed in forma pauperis; Amended Complaint deadline: 11/23/2020. See Order for details. Signed by Magistrate Judge Brenda Weksler on 10/9/2020. (Copies have been distributed pursuant to the NEF - HAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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STEPHANIE GORDON,

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Plaintiff,
ORDER

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Case No. 2:18-cv-00838-JAD-BNW

v.
STATE OF NEVADA DEPARTMENT OF
BUSINESS AND INDUSTRY, et al.,
Defendants.

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Presently before the Court is plaintiff Stephanie Gordon’s application to proceed in forma

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pauperis (ECF No. 1), filed on May 9, 2018.

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I.

In Forma Pauperis Application
All parties instituting any civil action, suit, or proceeding in a district court of the United

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States must pay a filing fee. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s

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failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
Here, Gordon has submitted the declaration required by 28 U.S.C. § 1915(a) showing an

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inability to prepay fees and costs or give security for them. ECF No. 1. Accordingly, Plaintiff’s

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request to proceed in forma pauperis will be granted. The Court will next screen Plaintiff’s

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complaint. ECF No. 1-1.

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II.

Screening the Complaint

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A. Standard of Review

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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).1 In screening the complaint, a court must identify cognizable

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Although § 1915 largely concerns prisoner litigation, § 1915(e) applies to all in forma pauperis
proceedings. Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.

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

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be 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).

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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

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F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient

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

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v. Iqbal, 556 U.S. 662, 678 (2009). In considering whether the complaint is sufficient to state a

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claim, all allegations of material fact are taken as true and construed in the light most favorable to

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the plaintiff. Wyler Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998)

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(citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual

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allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is

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insufficient. Id. Unless it is clear that the complaint’s deficiencies could not be cured through

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amendment, a plaintiff should be given leave to amend the complaint with notice regarding the

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complaint’s deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Even following the U.S. Supreme Court’s holdings in Twombly and Iqbal, the Court has

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an “obligation . . . where the petitioner is pro se . . . to construe the pleadings liberally and to

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afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (internal quotations and citation omitted). But “the liberal pleading standard . . . applies

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only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989); see

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also Bruns v. Nat'l Credit Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v.

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Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982)) (noting that a liberal construction may not

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be used to supply an essential element of the claim absent from the complaint).

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B. Analysis

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Here, Plaintiff Stephanie Gordon sues the State of Nevada Department of Business and

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Industry and three employees, including the agency’s director and a compliance audit

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§ 1915(e)(2)(B) are not limited to prisoners[.]”).

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investigator. ECF No. 1-1 at 2. It appears that Plaintiff is alleging that the Department of Business

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and Industry “help[ed] facilitate the theft of [her] property” by not properly investigating her

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complaint regarding a storage company’s allegedly deceptive advertising practices. Id. at 4.

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Plaintiff cites to the “Federal Trade Commission Act – 15 U.S.C. [§] 57a(a)(1)(B)[,]2 unfair or

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deceptive act or practice[, and t]he State Action Doctrine” and states that the “[t]he law applies to

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private parties when they conspire with public officials to violate constitutional rights.” Id. at 3. It

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does not appear to the Court, however, that Plaintiff has identified a claim on which relief can be

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granted. This is so for several reasons.

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First, with respect to the Federal Trade Commission (FTC), it does not appear that

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Plaintiff filed a complaint with the FTC or identified how the alleged failure to investigate by the

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Department of Business and Industry constitutes a violation of the FTC Act. Further, even if

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Plaintiff intended to allege that the Department of Business and Industry’s failure to investigate

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violates the FTC Act, Plaintiff is barred from bringing suit.3 This is because, as a general rule,

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there is no private right of action for a violation of the FTC Act. Carlson v. Coca–Cola Co., 483

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F.2d 279, 280 (9th Cir. 1973) (citation omitted) (“The protection against unfair trade practices

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afforded by the Act vests initial remedial power solely in the Federal Trade Commission.”);

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O’Donnell v. Bank of Am., Nat. Ass’n, 504 F. App’x 566, 568 (9th Cir. 2013) (the “court rightly

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dismissed the unfair competition claim premised on [defendant’s] alleged violation of the Federal

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Trade Commission Act. The federal statute doesn’t create a private right of action.”).

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Second, Plaintiff claims, under the state-action doctrine, that Defendants failed to properly

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investigate her claim against a storage company. ECF No. 1-1 at 3. The state-action doctrine

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provides that “a private entity may be considered a state actor when it exercises a function

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‘traditionally exclusively reserved to the State.’” Manhattan Cmty. Access Corp. v. Halleck, 139

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15 U.S.C. § 57a(a)(1)(B) indicates that the Federal Trade Commission can govern “rules which
define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting
commerce . . . .”
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Although Plaintiff cites to 15 U.S.C. § 57a(a)(1)(B), the Court understands that Plaintiff is
alleging that Defendants violated 15 U.S.C. § 45. This is because Section 45 provides that “[u]nfair
methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting
commerce, are hereby declared unlawful.”
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S. Ct. 1921, 1926 (2019) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352

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(1974)). But Plaintiff is not suing a private entity. Rather, she is suing a state agency—Nevada’s

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Department of Business and Industry—and three agency employees, including the agency

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director. ECF No. 1-1 at 2. As such, it is not clear how this doctrine applies to Plaintiff’s

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allegations. Furthermore, the state-action doctrine is not a cause of action. So even if it was

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applicable to Plaintiff’s case, it is unclear under what cause of action she seeks to sue Defendants.

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In short, Plaintiff has not stated a claim on which relief may be granted. Accordingly, the

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Court will order that the Complaint be dismissed, but with leave to amend. Plaintiff may file an

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amended complaint if she believes that she can cure the defects identified in this Order.

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The Court advises Plaintiff that if she files an amended complaint, the original complaint

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(ECF No. 1-1) will no longer serve any function in this case. This is because the Court cannot

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refer to a prior pleading or other documents to make Plaintiff’s amended complaint complete. See

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Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

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(holding that “[t]he fact that a party was named in the original complaint is irrelevant; an

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amended pleading supersedes the original”). Put another way, the amended complaint must be

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complete in and of itself without reference to prior pleadings or other documents.

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Finally, if Plaintiff chooses to file an amended complaint to identify a claim on which

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relief may be granted, the Court will screen it in a separate Screening Order as required by 28

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U.S.C. § 1915(e)(2).

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1.

IT IS THEREFORE ORDERED that Plaintiff Stephanie Gordon’s request

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to proceed in forma pauperis (ECF No. 1) is GRANTED. Gordon will not be required to pay the

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filing fee of $400.00.

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2.

Plaintiff is permitted to maintain this action to conclusion without the

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necessity of prepayment of any additional fees or costs or giving security for them. This Order

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granting leave to proceed in forma pauperis does not extend to the issuance of subpoenas at

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government expense.

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3.

IT IS FURTHER ORDERED that the Clerk of Court shall file Plaintiff’s

Complaint (ECF No. 1-1).
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4.

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IT IS FURTHER ORDERED that the Complaint (ECF No. 1-1) is

DISMISSED without prejudice and with leave to amend.
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IT IS FURTHER ORDERED that if Plaintiff believes that she can amend

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her Complaint to properly state a claim on which relief may be granted, she must file an amended

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complaint by November 23, 2020. If she chooses to file an amended complaint, she must write

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the words “First Amended Complaint” in the caption. The amended complaint will be screened in

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a separate Screening Order. Additionally, the amended complaint must be a complete document

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in and of itself and will supersede the original complaint (ECF No. 1-1) in its entirety. Any

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allegations, parties, or requests for relief from prior papers that are not carried forward in the

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amended complaint will no longer be before the Court. Plaintiff is further advised that if she does

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not file an amended complaint by November 23, 2020, the Court will recommend that this case be

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dismissed.

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6.

IT IS FURTHER ORDERED that the Clerk of Court send Plaintiff

one copy of the original complaint (ECF No. 1-1) and one copy of this Screening Order.

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DATED: October 9, 2020

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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