Adams v. Speedy Recovery Inc

• Court: District Court, D. Nevada
• Decided: April 28, 2023
• Docket: 2:23-cv-00251
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT

5 DISTRICT OF NEVADA

6 * * *

7 Brandon G Adams, Case No. 2:23-cv-00251-GMN-BNW

8 Plaintiff, SCREENING ORDER and 9 v. REPORT & RECOMMENDATION 10 Speedy Recovery Inc,

11 Defendant.

12 13 Pro se Plaintiff Brandon Adams initiated this lawsuit on February 16, 2023, by filing a 14 complaint. ECF No. 1. He subsequently filed an application to proceed in forma pauperis. ECF 15 No. 15. Because Plaintiff submitted the affidavit required by 28 U.S.C. § 1915(a) showing an 16 inability to prepay fees or costs or give security for them, the Court grants his request to proceed 17 in forma pauperis (ECF No. 15). 18 The Court now screens the complaint. ECF No. 1-1. 19 I. Analysis 20 A. Screening Standard 21 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 22 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 23 and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be 24 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 26 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 27 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 1 Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court liberally construes pro se 2 complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no 3 set of facts in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 4 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 5 In considering whether the complaint is sufficient to state a claim, all allegations of 6 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 7 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 8 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 9 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 10 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 11 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 12 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 13 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 14 B. Screening the Complaint 15 Plaintiff simply states that defendant “took his car,” which contained his personal 16 belongings, “while under a Federal Law Suit.” ECF No. 1-1 at 4. At this juncture, besides having 17 almost no information about the alleged claims, it is not clear that this Court has jurisdiction over 18 this claim. 19 “Federal district courts are courts of limited jurisdiction, possessing only that power 20 authorized by Constitution and statute.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 21 1027 (9th Cir. 2011) (quotation omitted). Federal district courts “have original jurisdiction of all 22 civil actions arising under the Constitution, laws, or treaties of the United States,” otherwise 23 known as federal question jurisdiction. 28 U.S.C. § 1331.1 24 25

26 1 Federal district courts also have original jurisdiction over civil actions in diversity cases “where the matter in controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of different States.” 28 27 U.S.C. § 1332(a). “Section 1332 requires complete diversity of citizenship; each of the plaintiffs must be a citizen of a different state than each of the defendants.” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). 1 Here, Plaintiff lists certain statutes which would presumably give the Court jurisdiction 2 over his claim. As explained below, the Court will dismiss Plaintiff’s complaint and give Plaintiff 3 leave to amend certain claims. 4 1. 15 U.S.C. § 1962 5 It appears that Plaintiff is attempting to claim a violation of the Federal Debt Collection 6 Practices Act. The FDCPA was created to protect consumers from unfair and deceptive debt 7 collection practices. See 15 U.S.C. § 1692. “To state a claim for violation of the FDCPA, a 8 plaintiff must allege that the defendant is a debt collector collecting a debt.” Izenberg v. ETS 9 Servs., LLC, 589 F. Supp. 2d 1193, 1199 (C.D. Cal. 2008) (internal quotation marks omitted). “In 10 order for a plaintiff to recover under the FDCPA, there are three threshold requirements: (1) the 11 plaintiff must be a ‘consumer’; (2) the defendant must be a ‘debt collector’; and (3) the defendant 12 must have committed some act or omission in violation of the FDCPA.” Robinson v. Managed 13 Accounts Receivables Corp., 654 F. Supp. 2d 1051, 1057 (C.D. Cal. 2009); see 15 U.S.C. 14 § 1692a(3), (6). 15 If Plaintiff wishes to pursue this claim, he must provide the necessary facts to show how 16 all three requirements listed above are satisfied. 17 2. 10 U.S.C. § 921 18 Title 10 of the United States Code outlines the role of armed forces in the United States 19 Code. It provides the legal basis for the roles, missions, and organization of each of the services 20 as well as the United States Department of Defense. Plaintiff cannot bring a claim under the 10 21 U.S.C. § 921 because this federal statute does not confer a private right of action. McArthur v. 22 Yale New Haven Hosp., No. 20-CV-998, 2021 WL 3725996, at *4 (D. Conn. Aug. 23, 2021) (no 23 private right of action under 10 U.S.C. § 921). As a result, the Court recommends that this claim 24 be dismissed with prejudice. 25 3. Constitutional Claims 26 Plaintiff asserts violations of the Seventh and Fourteenth Amendments and Article IV 27 Clause 2. Constitutional claims against state actors must be brought under 42 U.S.C. § 1983. See, 1 private parties for infringement of constitutional rights, Plaintiff must show that the private 2 parties’ infringement somehow constitutes state action. George v. Pac.-CSC Work Furlough, 91 3 F.3d 1227, 1229 (9th Cir. 1996). 4 Generally, private parties, such as Defendant Speedy Recovery, are not acting under color 5 of state law. See Price v. Hawaii, 939 F.2d 702, 707–08 (9th Cir. 1991). However, where a 6 private party conspires with state officials to deprive others of constitutional rights, the private 7 party is acting under color of state law. See Tower v. Glover, 467 U.S. 914, 920 (1984). “To prove 8 a conspiracy between the state and private parties under [§] 1983, the [plaintiff] must show an 9 agreement or meeting of the minds to violate constitutional rights. To be liable, each participant 10 in the conspiracy need not know the exact details of the plan, but each must at least share the 11 common objective of the conspiracy.” United Steelworkers of Am. v. Phelps Dodge Corp., 865 12 F.2d 1539, 1540–41 (9th Cir. 1989). 13 Thus, in order to proceed with the constitutional claims against Speedy Recovery, Plaintiff 14 must show how Speedy Recovery acted under color of state law. 15 4. NRS § 598.092 16 As explained above, the Court has jurisdiction only over matters arising under the 17 Constitution, laws, or treaties of the United States. This is a state—not federal—statute. 18 The supplemental jurisdiction statute provides that, “in any civil action of which the 19 district courts have original jurisdiction, the district courts shall have supplemental jurisdiction 20 over all other claims that are so related to claims in the action within such original jurisdiction 21 that they form part of the same case or controversy under Article III of the United States 22 Constitution.” 28 U.S.C. § 1367(a). Courts in this circuit have explained that where state law 23 claims arise from the same nucleus of operative fact as federal claims, a district court may 24 properly invoke its supplemental jurisdiction over the state law claims. See Bahrampour v. 25 Lampert, 356 F.3d 969, 978 (9th Cir. 2004). 26 Since Plaintiff must successfully state a federal claim to proceed with his case, the Court 27 will not screen his potential state court claims at this time. See Carnegie-Mellon Univ. v. Cohill, 1 before trial, the balance of factors to be considered under the pendent jurisdiction doctrine— 2 judicial economy, convenience, fairness, and comity—will point toward declining to exercise 3 jurisdiction over the remaining state-law claims.”). 4 C. Amendment 5 If Plaintiff chooses to amend, he must read this Order carefully and allege sufficient facts 6 to show that the requirements of each claim are met. 7 Additionally, Plaintiff is advised that if he files an amended complaint, the original 8 complaint (ECF No. 1-1) will no longer serve any function in this case. The amended complaint 9 must be complete in and of itself without reference to prior pleadings or to other documents. 10 II. Conclusion 11 IT IS THEREFORE ORDERED that Plaintiff Brandon Adams’ application for leave to 12 proceed in forma pauperis (ECF No. 15) is GRANTED. Plaintiff is permitted to maintain this 13 action to conclusion without prepaying fees or costs or giving security for them. 14 IT IS FURTHER ORDERED that the Clerk of Court must detach and separately file 15 Plaintiff’s complaint (ECF No. 1-1). 16 IT IS FURTHER ORDERED that Plaintiff’s complaint is dismissed without prejudice 17 and with leave to amend. If Plaintiff chooses to file an amended complaint, he must do so by 18 May 28, 2023, or this Court will recommend that his case be dismissed. 19 IT IS RECOMMENDED that Plaintiff’s claim under 10 U.S.C. § 921 be DISMISSED 20 with prejudice. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 1 |} II. Notice 2 This Report and Recommendation is submitted to the United States District Judge 3 || assigned to this case under 28 U.S.C. § 636(b)(1). A party who objects to this Report and 4 || Recommendation may file a written objection supported by points and authorities within 14 days 5 || of being served with it. Local Rule IB 3-2(a). Failure to file a timely objection may waive the 6 || right to appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991). 7 8 DATED: April 28, 2023. 9 pr La WEE BRENDA WEKSLER 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28