DeRon Tobias v. Cascasde Apartments, et al.

• Court: District Court, D. Nevada
• Decided: February 3, 2026
• Docket: 2:25-cv-00762
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 DeRon Tobias, Case No. 2:25-cv-00762-APG-BNW

5 Plaintiff, SCREENING ORDER AND 6 v. REPORT AND RECOMMENDATION

7 Cascasde Apartments, et al.,

8 Defendant.

9 10 Pro se plaintiff DeRon Tobias brings this case related to an alleged breach of his rental 11 agreement and resulting eviction. He submitted the affidavit required by 28 U.S.C. § 1915(a) 12 showing an inability to prepay fees or costs or give security for them. Accordingly, this Court will 13 grant his request to proceed in forma pauperis. This Court now screens his complaint. 14 I. Screening standard 15 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 16 under 28 U.S.C. § 1915(e)(2). In screening the complaint, a court must identify cognizable claims 17 and dismiss claims that are frivolous, malicious, file to state a claim on which relief may be 18 granted or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 19 § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard 20 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 21 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 22 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See Ashcroft 23 v. Iqbal, 556 U.S. 662, 678 (2009). This court liberally construes pro se complaints and may only 24 dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of 25 his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 26 2014) (quoting Iqbal, 556 U.S. at 678). 27 In considering whether the complaint is sufficient to state a claim, all allegations of 1 Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). 2 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 3 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 4 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 5 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 6 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 7 deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 8 “Federal district courts are courts of limited jurisdiction, possessing only that power 9 authorized by Constitution and statute.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 10 1027 (9th Cir. 2011) (quotation omitted). Federal district courts “have original jurisdiction of all 11 civil actions arising under the Constitution, laws, or treaties of the United States,” otherwise 12 known as federal question jurisdiction. 28 U.S.C. § 1331. Federal district courts also have original 13 jurisdiction over civil actions in diversity cases “where the matter in controversy exceeds the sum 14 or value of $75,000” and where the matter is between “citizens of different States.” 28 U.S.C. 15 § 1332(a). “Section 1332 requires complete diversity of citizenship; each of the plaintiffs must be 16 a citizen of a different state than each of the defendants.” Morris v. Princess Cruises, Inc., 236 17 F.3d 1061, 1067 (9th Cir. 2001). 18 II. Screening the complaint 19 This case arises out of Plaintiff’s residential lease, which was originally with Cascade 20 Apartments in Henderson, Nevada. After Plaintiff entered into the lease and paid required move- 21 in fees and rent, management of the property was transferred to Cushman & Wakefield. 22 Following that transition, Plaintiff alleges that Defendants failed to properly account for security 23 deposits, rent payments, and other charges, and did not provide an accurate or itemized financial 24 ledger as required. Plaintiff further contends that, despite the existence of an active lease and 25 ongoing disputes regarding payment and accounting, Defendants improperly initiated eviction 26 proceedings and mishandled Plaintiff’s payments. Plaintiff names the following Defendants: 27 Cascade Apartments, Cushman and Wakefield, and CT Corporation. Her claims include: (1) Fifth 1 UCC 3-104, (4) UCC 3-109, (5) UCC 3-501, (6) Fraudulent Misrepresentation, (7) NRS 598. 2 0923, (8) Wrongful Eviction, (9) Commercial Fraud, (10) 18 U.S.C. § 1343, (11) 18 U.S.C. § 3 1341, (12) Obstruction of Commercial Process, and (13) Abuse of Legal Process. 4 Plaintiff brings claims under both federal and state laws. This Court first begins with the 5 federal claims. 6 A. Federal claims 7 1. Claims 1 and 2—constitutional claims 8 Title 42 U.S.C. § 1983 provides that “[e]very person who, under color of [law], subjects, 9 or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, 10 privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured 11 in an action at law . . . .” Section 1983 does not create any substantive rights, but it provides a 12 method for enforcing rights contained in the Constitution or federal statutes. Crowley v. Nev. ex. 13 rel. Nev. Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012). To state a claim under 42 U.S.C. 14 § 1983, a plaintiff must allege “(1) the defendants acting under color of state law (2) deprived 15 plaintiffs of rights secured by the Constitution or federal statutes.” Williams v. California, 764 16 F.3d 1002, 1009 (9th Cir. 2014) (quotation omitted). 17 Generally, private parties are not acting under color of state law. See Price v. Hawaii, 939 18 F.2d 702, 707-08 (9th Cir. 1991). However,

19 conduct of a private individual constitutes state action when there is a such a close nexus between the State and the challenged action that the individual’s conduct 20 may be fairly treated as that of the State itself, such as when the nominally private actor is controlled by an agency of the State, when it has been delegated a public 21 function by the State, when it is entwined with governmental policies, or when government is entwined in its management or control. 22 23 Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1150 (9th Cir. 2011) (quotations 24 omitted). Further, “[a] private individual may be liable under § 1983 if she conspired or entered 25 joint action with a state actor.” Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) 26 (quotation omitted). 27 Here, Plaintiff names different companies as Defendants and alleges that their conduct 1 were acting under color of state law. Plaintiff does not allege any facts indicating that there was a 2 nexus between state actors and these companies or a delegation of authority from state actors to 3 these companies. Nor does he allege facts indicating that there was a conspiracy between state 4 parties and these companies. Given these deficiencies, the court will recommend dismissal of the 5 complaint with leave to amend.1 6 2. Claims 10 and 11--18 U.S.C. §§ 1341 and 1343 7 Plaintiff cannot sue Defendants under 18 U.S.C. §§ 1341 or 1343. “[C]ourts have 8 consistently found that the mail and wire fraud statutes do not confer private rights of action.” 9 Masin v. Vistakon Pharm., LLC, No. 3:08-CV-00550-RCJ-VPC, 2010 WL 11594971, at *2 (D. 10 Nev. June 14, 2010); see, e.g., Ross v. Orange Cty. Bar Ass’n, 369 F. App’x 868, 869 (9th Cir. 11 2010) (stating there is no private right of action for mail fraud under 18 U.S.C. § 1341); Lobstein 12 v. Washington Mut. Mortg. Pass-Through Certificates WMALT Series 2007-OC1, No. 13 219CV07615SVWJPR, 2019 WL 9362078, at *3 (C.D. Cal. Dec. 18, 2019) (stating there is no 14 private right of action under 18 U.S.C. §§ 1341 or 1344); Yeske v. Bendetov, No. 2:15-CV-1513- 15 GMN-NJK, 2016 WL 1610605, at *2 (D. Nev. Apr. 21, 2016) (“[I]t is well established that 16 [18 U.S.C. § 1343] is a criminal provision that does not give rise to a private cause of action.”); 17 Brown v. Bettinger, No. 2:15-CV-00331-APG, 2015 WL 4162505, at *3 (D. Nev. July 8, 2015) 18 (“Plaintiff cannot sue Defendant for civil damages for a violation of 18 U.S.C. § 1343.”); Bruce v. 19 Homefield Fin., Inc., No. 2:10-CV-2164-KJD-PAL, 2011 WL 4479736, at *3 (D. Nev. Sept. 23, 20 2011) (stating that a claim under 18 U.S.C. § 1344 must be dismissed because there is no private 21 right of action); Small v. Mortg. Elec. Registration Sys., Inc., No. 2:09-CV-0458 GEB DAD, 2010 22 WL 3719314, at *9 (E.D. Cal. Sept. 16, 2010) (stating there is no private right of action under 23 18 U.S.C. § 1344). Accordingly, the Court will recommend that Plaintiff’s claims under 18 24

25 1 In order to state an equal-protection claim, a plaintiff must allege facts demonstrating that defendants acted with the intent and purpose to discriminate against him based upon membership 26 in a protected class, or that defendants purposefully treated him differently than similarly situated 27 individuals without any rational basis for the disparate treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000). Should Plaintiff choose to amend his Fourteenth Amendment claim, he 1 U.S.C. §§ 1341 and 1343 be dismissed with prejudice for failure to state a claim, as these statutes 2 do not create a private right of action. 3 B. State claims 4 The remaining claims are: UCC 3-104, UCC 3-109, UCC 3-501, Fraudulent 5 Misrepresentation, NRS 598. 0923, Wrongful Eviction, Commercial Fraud, Obstruction of 6 Commercial Process, and Abuse of Legal Process. 7 In order for this Court to have diversity jurisdiction, the matter would need to be between 8 citizens of different States and the amount in controversy would need to exceed $75,000. Plaintiff 9 does not provide the citizenship of the Defendants, but it is clear the amount in controversy does 10 not exceed $75,000. 11 Given this Court does not have diversity jurisdiction, it analyzes whether it can employ 12 supplemental jurisdiction. The supplemental jurisdiction statute provides that, “in any civil action 13 of which the district courts have original jurisdiction, the district courts shall have supplemental 14 jurisdiction over all other claims that are so related to claims in the action within such original 15 jurisdiction that they form part of the same case or controversy under Article III of the United 16 States Constitution.” 28 U.S.C. § 1367(a). Courts in this circuit have explained that where state 17 law claims arise from the same nucleus of operative fact as federal claims, a district court may 18 properly invoke its supplemental jurisdiction over the state law claims. See Bahrampour v. 19 Lampert, 356 F.3d 969, 978 (9th Cir.2004). 20 Since Plaintiff must successfully state a federal claim to proceed with his case, this Court 21 will not screen his potential state claims at this time. See Carnegie-Mellon Univ. v. Cohill, 484 22 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated 23 before trial, the balance of factors to be considered under the pendent jurisdiction doctrine— 24 judicial economy, convenience, fairness, and comity—will point toward declining to exercise 25 jurisdiction over the remaining state-law claims.”). Should Plaintiff choose to amend his 26 complaint and actually plead claims under federal law, this Court will then entertain whether 27 supplemental jurisdiction is proper. 1 III. Instructions for Amendment 2 If Plaintiff chooses to amend, the original complaint (ECF No. 1-1) will no longer serve 3 any function in this case. As such, if Plaintiff files an amended complaint, each claim and the 4 involvement of each specific defendant must be alleged sufficiently. In this vein, this Court notes 5 that Plaintiff has grouped all Defendants together but does not explain which Defendant is 6 responsible for what conduct (and does not explain how CT Corporation System is involved at 7 all). It is important to review the section above (Section I) which explains what is necessary in 8 order to sufficiently state a claim. This Court cannot refer to a prior pleading or to other 9 documents to make plaintiff’s amended complaint complete. The amended complaint must be 10 complete in and of itself without reference to prior pleadings or to other documents. 11 IV. Conclusion 12 IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave to Proceed In 13 Forma Pauperis (ECF No. 1) is GRANTED. Plaintiff is permitted to maintain this action to 14 conclusion without prepaying fees or costs or giving security for them. 15 IT IS FURTHER ORDERED that the clerk of court must detach and separately file 16 plaintiff’s complaint (ECF No. 1-1). 17 IT IS RECOMMENDED that claims 10 and 11—18 U.S.C. §§ 1341 and 1343 be 18 dismissed with prejudice. 19 IT IS FURTHER ORDERED that the remaining claims are DISMISSED with leave to 20 amend. 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 1 IT IS FURTHER ORDERED that Plaintiff shall have until March 16, 2026, to file an 2 || amended complaint. If Plaintiff chooses not to file an amended complaint, the Court may dismiss 3 || this action without prejudice. 4 NOTICE 5 This report and recommendation is submitted to the United States district judge assigned 6 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 7 || may file a written objection supported by points and authorities within fourteen days of being 8 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 9 || objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 10 1153, 1157 (9th Cir. 1991). 1] 12 DATED: February 3, 2026 13 14 Fg ola boo BRENDA WEKSLER 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28