Keenan v. Acosta et al

Filing 4

ORDER AND REPORT AND RECOMMENDATION. IT IS HEREBY ORDERED that Plaintiff's 1 Application for Leave to Proceed in forma pauperis is GRANTED. Plaintiff will not be required to pay the filing fee in this action. Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of any additional fees or costs or the giving of a security for fees or costs. This Order granting leave to proceed in forma pauperis does not extend to the issuance of subpo enas at government expense. IT IS HEREBY RECOMMENDED that Plaintiff's claims under 42 U.S.C. §§ 1985 and 1986 against Defendants be DISMISSED without prejudice, with leave to amend.IT IS FURTHER RECOMMENDED that Plaintiff be give n thirty (30) court days from the date this Report and Recommendation is accepted and adopted to file an amended complaint correcting the above deficiencies, with the following admonishment: Plaintiff is advised that if she files an amended complaint , her Complaint (ECF No. 1 -1) no longer serves any function in this case. As such, the amended complaint must be complete in and of itself without reference to prior pleadings or other documents. The Court cannot refer to a prior pleading or othe r documents to make Plaintiff's amended complaint complete. IT IS FURTHER RECOMMENDED that if Plaintiff fails to comply with this recommendation, the Court be entitled to recommend this case be dismissed with prejudice. Objections to R&R due by 12/2/2020. Signed by Magistrate Judge Elayna J. Youchah on 11/18/2020. (Copies have been distributed pursuant to the NEF - HAM)

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Case 2:20-cv-02059-KJD-EJY Document 4 Filed 11/18/20 Page 1 of 4 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 SOCORRO KEENAN, 5 Plaintiff, 6 7 Case No.: 2:20-cv-02059-KJD-EJY ORDER and REPORT AND RECOMMENDATION v. LETICIA ACOSTA, et al., 8 Re: Plaintiff’s Complaint (ECF No. 1-1) Defendants. 9 10 Presently before the Court is Plaintiff Socorro Keenan’s Application for Leave to Proceed in 11 forma pauperis (ECF No. 1), attached to which is a Complaint. ECF No. 1-1. The Court finds as 12 follows. 13 I. IN FORMA PAUPERIS APPLICATION 14 Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay fees 15 and costs or give security for them. ECF No. 1. Accordingly, the request to proceed in forma 16 pauperis is granted pursuant to 28 U.S.C. § 1915(a). 17 II. SCREENING THE COMPLAINT 18 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 19 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 20 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted, 21 or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 22 Dismissal for failure to state a claim under Section 1915(e)(2) incorporates the standard for failure 23 to state a claim under Fed. R. Civ. P. 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 24 2012). To survive Section 1915 review, a complaint must “contain sufficient factual matter, 25 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 26 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them “if it 27 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would 28 1 Case 2:20-cv-02059-KJD-EJY Document 4 Filed 11/18/20 Page 2 of 4 1 entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (internal citation 2 omitted). 3 In considering whether the complaint is sufficient to state a claim, all allegations of material 4 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 5 v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the 6 standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 7 more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A 8 formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the 9 complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should be given 10 leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. U.S., 70 11 F.3d 1103, 1106 (9th Cir. 1995). 12 In this case, Plaintiff alleges Leticia Acosta (“Acosta”), two of Acosta’s privately retained 13 attorneys (Russell G. “Gubler” and Ashveen S. “Dhillon”), and the law firm at which these lawyers 14 are employed (Johnson & Gubler, P.C.) violated her civil rights under 42 U.S.C. §§ 1985 and 1986. 15 ECF No. 1-1 ¶¶ 3-6; see also id. at 8. Plaintiff identifies four parcels of real property that she owns 16 in Las Vegas and Henderson, Nevada. ECF No. 1-1 ¶ 2. Plaintiff claims Defendants conspired with 17 one another to forge fraudulent documents establishing ownership of Plaintiff’s property, after which 18 they filed unlawful detainer actions against Plaintiff in Nevada state court to evict her from her 19 property. Id. ¶¶ 35-36. Among other things, Plaintiff also contends Acosta broke into one of her 20 homes, stole her personal and legal mail, and harassed her tenants with illegitimate foreclosure 21 documents. Id. ¶¶ 15, 17, 23-24. 22 III. DISCUSSION 23 A plaintiff must first present a cognizable claim under Section 1983 to state a claim for 24 conspiracy under Section 1985. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 2004). 25 Likewise, the existence of an actionable conspiracy under Section 1985 is a prerequisite for a Section 26 1986 claim. Williams v. Sumner, 648 F.Supp. 510, 511 (D. Nev. 1986). Plaintiff may be able to 27 state viable Sections 1983, 1985, and 1986 claims against the Defendants; however, she presently 28 fails to do so. 2 Case 2:20-cv-02059-KJD-EJY Document 4 Filed 11/18/20 Page 3 of 4 1 A plaintiff seeking to state a claim for relief under Section 1983 must allege that (1) the 2 defendant subjected him to a deprivation of a right, privilege, or immunity secured by the 3 Constitution or laws of the United States, and (2) the defendant acted under color of state law or 4 authority. Morrison v. Jones, 607 F.2d 1269, 1276-76 (9th Cir. 1979), cert. denied, 445 U.S. 962 5 (1980). Even when liberally construed in the light most favorable to Plaintiff, Plaintiffs’ Complaint 6 contains no allegation that any Defendant acted under color of state law. Wyler Summit P’ship, 135 7 F.3d at 661. Instead, Plaintiff’s allegations concern Defendants’ “purely private conduct,” which 8 does not invoke liability for violation of civil rights under Section 1983. Dist. of Columbia v. Carter, 9 409 U.S. 418, 424 (1973). Because Plaintiff fails to allege Section 1983 claims against Defendants, 10 it follows that Plaintiff also does not state Section 1985 or 1986 claims against these parties. Olsen, 11 363 F.3d at 930; Williams, 648 F.Supp. at 511. 12 Moreover, even if Plaintiff sufficiently pleaded Defendants acted under color of state law 13 and deprived her of a federally protected right, Plaintiff fails to present cognizable Section 1985 and 14 1986 claims. Claims under Section 1985 must be motivated by racial or other class-based animus. 15 Mollnow v. Carlton, 716 F.2d 627, 628 (9th Cir. 1983). Plaintiff fails to assert that Defendants acted 16 with the requisite motivation and offers no facts from which such motivation could be gleaned. As 17 stated above, a plaintiff must first demonstrate a conspiracy actionable under Section 1985 to state 18 a Section 1986 claim. Williams, 648 F.Supp. at 511. Therefore, as currently pleaded, Plaintiff fails 19 to allege sufficient facts to state a Section 1985 or 1986 claim against Defendants. 20 IV. ORDER 21 IT IS HEREBY ORDERED that Plaintiff’s Application for Leave to Proceed in forma 22 pauperis (ECF No. 1) is GRANTED. Plaintiff will not be required to pay the filing fee in this action. 23 Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of 24 any additional fees or costs or the giving of a security for fees or costs. This Order granting leave to 25 proceed in forma pauperis does not extend to the issuance of subpoenas at government expense. 26 V. 27 28 RECOMMENDATION IT IS HEREBY RECOMMENDED that Plaintiff’s claims under 42 U.S.C. §§ 1985 and 1986 against Defendants be DISMISSED without prejudice, with leave to amend. 3 Case 2:20-cv-02059-KJD-EJY Document 4 Filed 11/18/20 Page 4 of 4 1 IT IS FURTHER RECOMMENDED that Plaintiff be given thirty (30) court days from the 2 date this Report and Recommendation is accepted and adopted to file an amended complaint 3 correcting the above deficiencies, with the following admonishment: Plaintiff is advised that if she 4 files an amended complaint, her Complaint (ECF No. 1-1) no longer serves any function in this case. 5 As such, the amended complaint must be complete in and of itself without reference to prior 6 pleadings or other documents. The Court cannot refer to a prior pleading or other documents to 7 make Plaintiff’s amended complaint complete. 8 9 10 IT IS FURTHER RECOMMENDED that if Plaintiff fails to comply with this recommendation, the Court be entitled to recommend this case be dismissed with prejudice. DATED this 18th day of November, 2020. 11 12 13 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 14 15 NOTICE 16 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be 17 in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has 18 held that the courts of appeal may determine that an appeal has been waived due to the failure to file 19 objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This Circuit has 20 also held that (1) failure to file objections within the specified time and (2) failure to properly address 21 and brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 22 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 23 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 24 25 26 27 28 4

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