2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Leonard Hairston, Case No. 2:24-cv-02134-GMN-DJA 6 Plaintiff, 7 Order v. and 8 Report and Recommendation Nevada Gaming Control Board, Nevada 9 Gaming Commission,
10 Defendants.
11 12 Under 28 U.S.C. § 1915 Leonard Hairston is proceeding in this action pro se and has 13 requested authority to proceed in forma pauperis, which means without paying the filing fee. 14 (ECF No. 7). Hairston also submitted a complaint. (ECF No. 1-1). Because the Court finds that 15 Hairston’s application is complete, it grants the application to proceed in forma pauperis. 16 However, because the Court finds that Hairston attempts to sue immune defendants, the Court 17 recommends dismissing his complaint without leave to amend. 18 I. In forma pauperis application. 19 Hairston filed the affidavit required by § 1915(a). (ECF No. 7). Hairston has shown an 20 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed 21 in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 22 Hairston’s complaint. 23 II. Legal standard for screening. 24 Upon granting an application to proceed in forma pauperis, courts additionally screen the 25 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 26 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 2 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 3 F.3d 1103, 1106 (9th Cir. 1995). 4 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 5 complaint for failure to state a claim upon which relief can be granted. Review under Rule 6 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 7 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 8 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 9 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 10 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 11 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 12 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 13 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 14 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 15 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 16 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 17 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 18 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 19 construction of pro se pleadings is required after Twombly and Iqbal). 20 Federal courts are courts of limited jurisdiction and possess only that power authorized by 21 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 22 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 23 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 24 federal law creates the cause of action or where the vindication of a right under state law 25 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 26 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 27 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 1 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under 28 U.S.C. § 1332(a), federal 2 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 3 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 4 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 5 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 6 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 7 III. Screening the complaint. 8 Hairston sues the Nevada Gaming Control Board and the Nevada Gaming Commission, 9 invoking federal question jurisdiction. (ECF No. 1-1 at 2-3). Hairston brings his claims under 10 the Due Process Clause of the Fourteenth Amendment, Nevada Revised Statute (“NRS”) 11 § 463.153,1 and NRS § 463.312(2).2 (Id.). Liberally construing Hairston’s complaint, he alleges 12 that he was a candidate for inclusion on a list of persons to be excluded from gaming 13 establishments and, as a result, was entitled to certain procedural due process, specifically notice 14 and an opportunity to be heard. (Id. at 4). He alleges that the Board violated NRS § 463.153 by 15 failing to provide him notice of a complaint seeking to include him on the list. (Id.). Hairston 16 asserts that this failure divested the Commission of jurisdiction to hear the complaint and so, the 17
18 1 NRS § 463.151(2) permits the Commission to “provide for the establishment of a list of persons who are to be excluded or ejected from any licensed gaming establishment…” That list “may 19 include any person whose presence in the establishment is determined by the Board and the Commission to pose a threat to the interests of this state or to licensed gaming, or both.” NRS 20 § 463.151(2). Whenever putting someone’s name on the list, the Board is obligated to serve 21 notice of that fact on the person by personal service, certified mail to their last known address, or by publication daily for one-week in the principal newspapers published in Reno and Las Vegas.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Leonard Hairston, Case No. 2:24-cv-02134-GMN-DJA 6 Plaintiff, 7 Order v. and 8 Report and Recommendation Nevada Gaming Control Board, Nevada 9 Gaming Commission,
10 Defendants.
11 12 Under 28 U.S.C. § 1915 Leonard Hairston is proceeding in this action pro se and has 13 requested authority to proceed in forma pauperis, which means without paying the filing fee. 14 (ECF No. 7). Hairston also submitted a complaint. (ECF No. 1-1). Because the Court finds that 15 Hairston’s application is complete, it grants the application to proceed in forma pauperis. 16 However, because the Court finds that Hairston attempts to sue immune defendants, the Court 17 recommends dismissing his complaint without leave to amend. 18 I. In forma pauperis application. 19 Hairston filed the affidavit required by § 1915(a). (ECF No. 7). Hairston has shown an 20 inability to prepay fees and costs or give security for them. Accordingly, the request to proceed 21 in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 22 Hairston’s complaint. 23 II. Legal standard for screening. 24 Upon granting an application to proceed in forma pauperis, courts additionally screen the 25 complaint under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 26 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 1 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 2 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 3 F.3d 1103, 1106 (9th Cir. 1995). 4 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 5 complaint for failure to state a claim upon which relief can be granted. Review under Rule 6 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 7 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of 8 the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. 9 v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual 10 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the 11 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v. 12 Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual allegations 13 contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 14 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 15 allegations, do not suffice. Id. at 678. Where the claims in the complaint have not crossed the 16 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 17 Allegations of a pro se complaint are held to less stringent standards than formal pleadings 18 drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal 19 construction of pro se pleadings is required after Twombly and Iqbal). 20 Federal courts are courts of limited jurisdiction and possess only that power authorized by 21 the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). Under 28 U.S.C. 22 § 1331, federal courts have original jurisdiction over “all civil actions arising under the 23 Constitution, laws, or treaties of the United States.” Cases “arise under” federal law either when 24 federal law creates the cause of action or where the vindication of a right under state law 25 necessarily turns on the construction of federal law. Republican Party of Guam v. Gutierrez, 277 26 F.3d 1086, 1088-89 (9th Cir. 2002). Whether federal-question jurisdiction exists is based on the 27 “well-pleaded complaint rule,” which provides that “federal jurisdiction exists only when a 1 Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Under 28 U.S.C. § 1332(a), federal 2 district courts have original jurisdiction over civil actions in diversity cases “where the matter in 3 controversy exceeds the sum or value of $75,000” and where the matter is between “citizens of 4 different states.” Generally speaking, diversity jurisdiction exists only where there is “complete 5 diversity” among the parties; each of the plaintiffs must be a citizen of a different state than each 6 of the defendants. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). 7 III. Screening the complaint. 8 Hairston sues the Nevada Gaming Control Board and the Nevada Gaming Commission, 9 invoking federal question jurisdiction. (ECF No. 1-1 at 2-3). Hairston brings his claims under 10 the Due Process Clause of the Fourteenth Amendment, Nevada Revised Statute (“NRS”) 11 § 463.153,1 and NRS § 463.312(2).2 (Id.). Liberally construing Hairston’s complaint, he alleges 12 that he was a candidate for inclusion on a list of persons to be excluded from gaming 13 establishments and, as a result, was entitled to certain procedural due process, specifically notice 14 and an opportunity to be heard. (Id. at 4). He alleges that the Board violated NRS § 463.153 by 15 failing to provide him notice of a complaint seeking to include him on the list. (Id.). Hairston 16 asserts that this failure divested the Commission of jurisdiction to hear the complaint and so, the 17
18 1 NRS § 463.151(2) permits the Commission to “provide for the establishment of a list of persons who are to be excluded or ejected from any licensed gaming establishment…” That list “may 19 include any person whose presence in the establishment is determined by the Board and the Commission to pose a threat to the interests of this state or to licensed gaming, or both.” NRS 20 § 463.151(2). Whenever putting someone’s name on the list, the Board is obligated to serve 21 notice of that fact on the person by personal service, certified mail to their last known address, or by publication daily for one-week in the principal newspapers published in Reno and Las Vegas. 22 See NRS § 463.152. Within thirty days of receiving the notice by mail or in person, or within sixty days of the last publication, the person named on the list may demand a hearing before the 23 Commission and show cause why the person should have his or her name taken from the list. See NRS § 463.153(1). 24 2 NRS § 463.312 does not appear to apply to this case. That statute governs the contents and 25 service of complaints seeking revocation of gaming licenses and related privileges. See NRS § 463.312(2) (providing that the Board may file a complaint with the Commission if it seeks to 26 limit, condition, suspend, or revoke gaming licenses and other privileges or to fine individuals or 27 entities holding those licenses or privileges). And Hairston has not alleged any facts showing that this provision applies in this case. Nonetheless, because the Court recommends dismissing 1 Commission’s November 17, 2022, order excluding Hairston from gaming establishments was 2 improper. (Id.). 3 Hairston’s claims against the Board and the Commission are barred in federal court by the 4 Eleventh Amendment. See Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999). In Romano v. 5 Bible, the Ninth Circuit affirmed a district court’s dismissal of a plaintiff’s claims against the 6 Board and the Commission because “[t]he Eleventh Amendment bars suits against the State or its 7 agencies for all types of relief, absent unequivocal consent by the state.” Id. (citing Pennhurst v. 8 Halderman, 465 U.S. 89, 100 (1984)). Although the State of Nevada has waived its common-law 9 sovereign immunity in its own courts, it has explicitly declined to waive Eleventh Amendment 10 protection from suit in federal court. NRS § 41.031. So, Hairston may not bring his claims in 11 federal court, and the Court recommends dismissing his complaint without leave to amend. 12 13 ORDER 14 IT IS THEREFORE ORDERED that Plaintiff’s application to proceed in forma 15 pauperis (ECF No. 7) is granted. Plaintiff shall not be required to pre-pay the filing fee. 16 Plaintiff is permitted to maintain this action to conclusion without the necessity of prepayment of 17 any additional fees or costs or the giving of a security therefor. This order granting leave to 18 proceed in forma pauperis shall not extend to the issuance and/or service of subpoenas at 19 government expense. 20 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to file Plaintiff’s 21 complaint (ECF No. 1-1) on the docket but shall not issue summons. 22 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send Plaintiff 23 a copy of this order and report and recommendation. 24 25 RECOMMENDATION 26 IT IS RECOMMENDED that the complaint (ECF No. 1-1) be dismissed without leave 27 to amend. 1 NOTICE 2 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 3 || 1 writing and filed with the Clerk of the Court within (14) days after service of this Notice. The 4 || Supreme Court has held that the courts of appeal may determine that an appeal has been waived 5 || due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 6 || (1985), reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that (1) failure to 7 || file objections within the specified time and (2) failure to properly address and brief the 8 || objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 9 || issues from the order of the District Court. Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991); 10 || Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 1] 12 DATED: March 17, 2025, A ) a /) 13 LOW (> DANIEL J. ALBREGTS |, 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28