Barnett v. First Premier Bank

Filing 29

ORDER. IT IS ORDERED that P's 26 motion for reconsideration is DENIED. Signed by Judge Larry R. Hicks on 5/19/2011. (Copies have been distributed pursuant to the NEF - PM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DOYLE CHASE BARNETT,

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Plaintiff,

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v.

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FIRST PREMIER BANK.,

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Defendant.

3:10-cv-0708-LRH-RAM
ORDER

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Before the court is plaintiff Doyle Chase Barnett’s (“Barnett”) motion for reconsideration of

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the court’s March 7, 2011 order of dismissal (Doc. #241). Doc. #26.

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I.

Facts and Procedural History

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In December 2008, Barnett entered a Raley’s supermarket, loaded a shopping cart full of

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items, and left the store without paying. Barnett was detained by police. While detained, Barnett

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produced a credit card issued by First Premier and claimed that he simply forgot to purchase the

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items but that he had both the ability to pay and the intention to do so when he entered the store.

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The Reno Police Department investigated the incident. As part of the investigation,

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Detective Reed Thomas (“Detective Thomas”) contacted First Premier via telephone to inquire

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about the credit card issued to Barnett. First Premier told Detective Thomas that it had issued the

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Refers to the court’s docket entry number.

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card to Barnett, but that the card was suspended in October 2008 for non-payment. Barnett was

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subsequently charged with, and ultimately convicted of, commercial burglary.

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After his conviction, Barnett filed the underlying civil rights complaint against First Premier

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alleging two causes of action: (1) a violation of NRS 293A.070, et seq.; and (2) a violation of 15

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U.S.C. § 6801, et seq. Doc. #1, Exhibit 1. In response, defendants filed a motion to dismiss

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(Doc. #2) which was granted by the court (Doc. #24). In the court’s order of dismissal, the court

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found that neither 15 U.S.C. § 6801, nor NRS 293A.070 provide for a private right of action, and

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thus, Barnett had failed to state a claim upon which relief can be granted. See Doc. #24.

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Thereafter, Barnett filed the present motion for reconsideration of the court’s order of

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dismissal arguing that the court erred in failing to provide him an opportunity to amend his

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complaint. Doc. #26.

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II.

Discussion

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Barnett brings his motion for reconsideration pursuant to Fed. R. Civ. P. 59(e). Rule 59(e)

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provides that a district court may reconsider a prior order where the court is presented with newly

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discovered evidence, an intervening change of controlling law, manifest injustice, or where the

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prior order was clearly erroneous. FED . R. CIV . P. 59(e); see also United States v. Cuddy, 147 F.3d

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1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255,

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1263 (9th Cir. 1993).

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Here, Barnett argues that the court’s order was clearly erroneous because the court failed to

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provide him with an opportunity to amend his complaint. See Doc. #26. However, the court finds

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that Barnett’s motion for reconsideration is without merit. Barnett’s complaint failed to state a

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claim for relief because the statutes that defendants allegedly violated do not allow for a private

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right of action. Because no private right of action exists, Barnett cannot allege any new factual

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allegations that would allow him to bring these claims against defendants. It is well established law

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in the Ninth Circuit that when it is absolutely clear that the deficiencies of a pro se litigant’s

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complaint cannot be cured by amendment a court is not required to grant leave to amend. See Noll

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v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Therefore, the court finds that the court’s order of

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dismissal was not clearly erroneous and, as such, reconsideration is not warranted.

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IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration (Doc. #26) is
DENIED.

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IT IS SO ORDERED.

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DATED this 19th day of May, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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