Zito v. Summit Staffing Inc.

Opinion

* * * Case No. 3:25-CV-00350-MMD-CLB REPORT AND RECOMMENDATION OF Plaintiff, U.S. MAGISTRATE JUDGE1

v. SUMMITT STAFFING INC., et al., Defendants.

Before the Court is Plaintiff Jordan Zito’s (“Zito”), application to proceed in forma pauperis (ECF No. 1), and civil rights complaint (ECF No. 1-1). For the reasons stated below, the Court recommends that Zito’s in forma pauperis application, (ECF No. 1), be granted, and his complaint, (ECF No. 1-1), be dismissed, with prejudice. A person may be granted permission to proceed in forma pauperis (“IFP”) if the person “submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefore. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating 28 U.S.C. § 1915 applies to all actions filed IFP, not just prisoner actions). Pursuant to LSR 1-1: “Any person who is unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. The application must be made on the form provided by the court and must include a financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” “[T]he supporting affidavit [must] state the facts as to [the] affiant’s poverty with some particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th

1 This Report and Recommendation is made to the Honorable Mirada M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge Cir. 1981) (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). A review of the application to proceed IFP reveals Zito is unable to pay the filing fee. Accordingly, the Court recommends that the IFP application, (ECF No. 1), be granted. Prior to ordering service on any Defendant, the Court is required to screen an in forma pauperis complaint to determine whether dismissal is appropriate under certain circumstances. See Lopez, 203 F.3d at 1126 (noting the in forma pauperis statute at 28 U.S.C. § 1915(e)(2) requires a district court to dismiss an in forma pauperis complaint for the enumerated reasons). Such screening is required before a litigation proceeding in forma pauperis may proceed to serve a pleading. Glick v. Edwards, 803 F.3d 505, 507 (9th Cir. 2015). “[T]he court shall dismiss the case at any time if the court determines that – (A) the allegations of poverty is untrue; or (B) the action or appeal – (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii). Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) tracks that language. When reviewing the adequacy of a complaint under this statute, the court applies the same standard as is applied under Rule 12(b)(6). See, e.g., Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”). Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. The Court must accept as true the allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations marks and citation omitted). A complaint must contain more than a “formulaic recitation of the elements of a cause of actions,” it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain something more. . . than. . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A dismissal should not be without leave to amend unless it is clear from the face of the complaint the action is frivolous and could not be amended to state a federal claim, or the district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). In his complaint, Zito states he is suing the “The State of Nevada in relation to Summit Staffing Inc., Hub Group Inc., TAGG Logistics, The State of Illinois, The City of Chicago.” (ECF No. 1-1 at 1.) Zito states that the “relief is in excess of $75,000 because [t]hey need not just damages, reasonable attorney fees, [r]estitution, pain and suffering; but also need reprogramming, if not more— probably moreso [liquidation] and Forfeiture Proceedings and a bidding due process of complete and total comprehensive selloff.” (Id.) Zito alleges that “forgery, [f]raud, [t]hreats, multiple transactions involving fraud or deceit, peonage” have taken place and “believe[s] this to be an Antitrust Clayton Act existed far long before it was called such, and it successfully defended itself from all Foreigners for MANY, MANY YEARS AND YEARS” and “if you won't ACT on what it is telling you, then it will ACT on it's core function to hurt you and others without even thinking about it.” (Id. at 3, 16.) To the extent the Court can decipher the Complaint, Zito alleges his action is under a variety of federal and Nevada state statutes. (Id.) Even construing the allegations of Zito’s complaint liberally, the Court cannot conceive or construe any specific set of circumstances under which these conclusory statements would give rise to any federal constitutional or statutory right. The complaint is vague, rambling, and nonsensical. Dismissal on those grounds alone is appropriate. Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quotation and alteration omitted). Zito’s largely incomprehensible narrative makes it impossible for the Court to identify the factual or legal basis for his claims. Further, Zito does not provide sufficient information to determine which causes of action he wishes to proceed under, nor does he show how he is entitled to the relief sought. Zito states no claim upon which relief may be granted, therefore this action should be dismissed with prejudice. Leave to amend is not appropriate because the deficiencies in Zito’s complaint cannot be cured by amendment, making amendment futile. See Cato, 70 F.3d at 1106. For good cause appearing and for the reasons stated above, the Court recommends that Zito’s application to proceed in forma pauperis, (ECF No. 1), be granted, and his complaint, (ECF No. 1-1), be dismissed, with prejudice, as amendment would be futile. The parties are advised: 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of Recommendation within fourteen days of receipt. These objections should be entitled “Objections to Magistrate Judge’s Report and Recommendation” and should be accompanied by points and authorities for consideration by the District Court. 2. This Report and Recommendation is not an appealable order and any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s judgment. Y. RECOMMENDATION IT IS RECOMMENDED that Zito’s application to proceed in forma pauperis, (ECF 9} No. 1), be GRANTED. IT IS FURTHER RECOMMENDED that the Clerk FILE the complaint, (ECF No. 1- 1). IT IS FURTHER RECOMMENDED that Zito’s complaint, (ECF No. 1-1), be DISMISSED, WITH PREJUDICE. IT IS FURTHER RECOMMENDED that this action be CLOSED, and judgment be entered accordingly. DATED: July 25, 2025 UNITED STATES\MAGISTRATE JUDGE gq