Morris v. Nevada Gaming Control Board et al

Filing 3

REPORT AND RECOMMENDATION: IT IS RECOMMENDED that ECF No. 1 Motion/Application for Leave to Proceed in forma pauperis be GRANTED; the Clerk FILE Plaintiff's Complaint ECF No. 1 -1; the Complaint be DISMISSED WITH PREJUDICE. Objections to R&R due by 7/19/2017. Signed by Magistrate Judge Valerie P. Cooke on 07/05/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 3:16-cv-00604-MMD-VPC BRENT MORRIS, Plaintiff, 5 6 7 8 v. NEVADA GAMING CONTROL BOARD, et al., Defendants. REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is Brent Morris’s (“plaintiff”) application to proceed in forma pauperis (ECF No. 1) and pro se complaint (ECF No. 1-1). Having reviewed the record, the court recommends that plaintiff’s application to proceed in forma pauperis be granted, and that the complaint be dismissed with prejudice. I. IN FORMA PAUPERIS APPLICATION As set forth in 28 U.S.C. § 1915(a), the court may authorize a plaintiff to proceed in forma pauperis if he or she is unable to pay the prescribed court fees. The plaintiff need not “be absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Based on the financial information provided in his application to proceed in forma pauperis, the court finds that plaintiff is unable to pay the filing fee in this matter. (See ECF No. 1.) Accordingly, the court recommends that plaintiff’s application to proceed in forma pauperis be granted. II. LEGAL STANDARD Applications to proceed in forma pauperis are governed by 28 U.S.C. § 1915. Section 1915 provides, in relevant part, that “the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon 1 which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune 2 from such relief.” 28 U.S.C. § 1915(e)(2)(B). Dismissal of a complaint for failure to state a 3 claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 4 12(b)(6), and the court applies the same standard under section 1915 when reviewing the 5 adequacy of a complaint or amended complaint. See Resnick v. Hayes, 213 F.3d 443, 447 (9th 6 Cir. 2000). 7 Under Rule 12(b)(6), the court must dismiss the complaint if it fails to “state a claim for 8 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Courts 9 accept as true all well-pled factual allegations, set aside legal conclusions, and verify that the 10 factual allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 11 Although the complaint need not contain detailed factual allegations, it must offer more than “a 12 formulaic recitation of the elements of a cause of action” and “raise a right to relief above a 13 speculative level.” Twombly, 550 U.S. at 555. 14 The complaint is construed in a light most favorable to the plaintiff. Chubb Custom Ins. 15 Co. v. Space Systems/Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court takes particular 16 care when reviewing the pleadings of a pro se party, for a more forgiving standard applies to 17 litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a 18 liberal construction may not be used to supply an essential element of the claim not initially pled. 19 Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If dismissal is appropriate, the pro se 20 plaintiff should be given leave to amend the complaint, and some notice of its deficiencies, unless 21 it is clear that those deficiencies cannot be cured. Cato v. United States, 70 F.3d 1103, 1107 (9th 22 Cir. 1995). 23 III. DISCUSSION 24 Plaintiff’s complaint alleges various civil rights claims pursuant to 42 U.S.C. § 1983 for 25 alleged constitutional violations stemming from plaintiff’s arrest, trial, and conviction in Nevada 26 state court. (ECF No. 1-1.) Plaintiff sues defendants Rachel Martines (“Martines”), Boyd 27 Gaming Corporation, the Orleans Hotel and Casino (“Orleans”), Elizabeth Sobczak (“Sobczak”), 28 Jeffery Fine (“Fine”), and Mitchell Caberto (“Caberto”). (Id. at 2-3.) Plaintiff alleges that on 2 1 September 22, 2010, he was unlawfully arrested by Nevada Gaming Control Board agent 2 Martines. (Id. at 5.) Upon his arrest, plaintiff alleges he was searched and had $768.00 in 3 Caesars gaming chips and $5,000.00 in Orleans gaming chips seized. (Id.) Plaintiff asserts that 4 the seizure of the chips was illegal and there was a lack of probable cause for his arrest. (Id. at 4- 5 7.) Further, plaintiff asserts that he was subjected to a malicious prosecution on charges of 6 cheating at the Orleans, which he alleges were subsequently dismissed. (Id. at 8.) 7 This is not plaintiff’s first attempt to litigate the facts of this case. Aside from state court 8 actions, plaintiff has filed two nearly identical cases in this district. See Morris v. Orleans Hotel 9 and Casino, 2:12-cv-01683-JCM-CWH (dismissed as frivolous and for failure to state a claim) 10 and Morris v. Caberto, Case No. 2:16-cv-02416-GMN-NJK (barred by claim preclusion and 11 dismissed with prejudice). The court notes that duplicative litigation by a plaintiff proceeding in 12 forma pauperis may be dismissed as malicious under 28 U.S.C. § 1915(e). See Cato, 70 F.3d at 13 1105 n.2 (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (holding that repetitious 14 litigation of virtually identical causes of action is subject to dismissal as malicious)); Pittman v. 15 Moore, 980 F.2d 994, 994-95 (5th Cir. 1993) (holding that it is malicious for a “pauper” to file a 16 lawsuit that duplicates allegations of another pending federal lawsuit by the same plaintiff). As 17 such, plaintiff’s complaint should be dismissed as malicious with prejudice. 18 IV. CONCLUSION 19 Consistent with the foregoing, the court concludes that dismissal is warranted under 28 20 U.S.C. 1915(e)(2)(B)(i). Because amendment would be futile, the dismissal should be with 21 prejudice. See Cato, 70 F.3d at 1106. 22 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 23 Practice, the parties may file specific written objections to this Report and Recommendation 24 within fourteen days of receipt. These objections should be entitled “Objections to Magistrate 25 Judge’s Report and Recommendation” and should be accompanied by points and authorities for 26 consideration by the District Court. 27 28 3 1 2. This Report and Recommendation is not an appealable order and any notice of 2 appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s 3 judgment. V. 4 5 6 7 8 9 RECOMMENDATION IT IS THEREFORE RECOMMENDED that plaintiff’s application to proceed in forma pauperis (ECF No. 1) be GRANTED; IT IS FURTHER RECOMMENDED that the Clerk FILE plaintiff’s complaint (ECF No. 1-1); IT IS FURTHER RECOMMENDED that the complaint (ECF No. 1-1) be 10 DISMISSED WITH PREJUDICE. 11 DATED: July 5, 2017. 12 13 ______________________________________ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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