Welch v. State of Nevada

Opinion

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10 Plaintiff, Case No. 3:20-CV-00113-RCJ-WGC

11 vs. ORDER 12 STATE OF NEVADA, et al., 13 Defendants. 14

15 Plaintiff filed a complaint in forma pauperis under 28 U.S.C. § 1915(a)(1), seeking 16 damages from the state of Nevada, two state agencies, and two members of a foster family that 17 raised him for part of his childhood. Plaintiff alleges that the foster family members sexually 18 assaulted him and raises constitutional claims under 42 U.S.C. § 1983. The Magistrate Judge 19 screened the complaint under § 1915(e) and recommended that the Court dismiss the case with 20 prejudice for failure to state a claim, concluding that Nevada and the agencies “are not persons 21 that may be sued under [§] 1983” and that foster family members are not state actors. (ECF No. 4 22 at 5.) This Court accepted the Magistrate Judge’s recommendation. (ECF No. 6.) Plaintiff appealed 23 that order. (ECF No. 8.) The Ninth Circuit then remanded this case for the limited purpose of 24 determining whether Plaintiff’s case should proceed in forma pauperis on appeal or if the Court 1 || elects to “certif[y] in writing that [this appeal] is not taken in good faith.” § 1915(a)(3); (accord 2 || ECF No. 10). 3 If the entirety of an appeal is frivolous, then a court should elect to so certify. Hooker v. 4 || Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002). A claim is “frivolous where it lacks an arguable 5 || basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). The law is well- 6 || settled against Plaintiff, so his claims cannot succeed. See 15 Am. Jur. 2d Civil Rights § 89 n.1 7 || (2020) (‘States and their administrative agencies are not ‘persons’ who can be held liable under 8 || § 1983 ....%); Ismail v. Cty. of Orange, 693 F. App’x 507, 512 (9th Cir. 2017) (‘Merely serving 9 || as a foster parent does not transform a private party into a state actor.”). Hence, this Court 10 || dismissed this case with prejudice upon initial screening without granting leave to amend and 11 || consequently finds that any appeal would not be taken in good faith. 13 IT IS HEREBY ORDERED that this Court certifies that any appeal taken in forma 14 || pauperis would not be taken “in good faith” under 28 U.S.C. § 1915(a)(3). 15 IT IS FURTHER ORDERED that the clerk will serve this order to United States Court of 16 || Appeals for the Ninth Circuit. 18 || Dated June 15, 2020. 19 20 Co ROBE . JONES 21 United Stafe¢ District Judge 22 23 24

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