Varner v. UMC of Southern Nevada Hospital ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 KHARI VARNER, Case No. 2:24-cv-02105-CDS-EJY 5 Plaintiff, ORDER 6 v. AND 7 UNIVERSITY MEDICAL CENTER OF REPORT AND RECOMMENDATION SOUTHERN NEVADA, 8 Defendant. 9 10 Pending before the Court is Plaintiff Khari Varner’s application to proceed in forma pauperis 11 (ECF No. 1) as well as his Complaint (ECF No. 1-1). Also pending are Plaintiff’s Motion 12 [Requesting] Serv[ice] of Summons to All Parties and Motion to Send Non-Inmate IFP Application. 13 ECF Nos. 4 and 5. 14 I. Plaintiff’s Application to Proceed in forma pauperis 15 Plaintiff’s application to proceed in forma pauperis, required by 28 U.S.C. § 1915(a), 16 demonstrates he is unable to prepay court filing fees and costs or give security for them. ECF No. 1. 17 Plaintiff’s in forma pauperis application is granted. 18 II. Screening Standard 19 Upon granting a request to proceed in forma pauperis, a court must screen the complaint 20 under 28 U.S.C. § 1915(e)(2). To survive § 1915 review, a complaint must “contain sufficient 21 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 22 Iqbal, 556 U.S. 662, 678 (2009). This standard “does not require detailed factual allegations, but it 23 demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal 24 quotation omitted). The Court must liberally construe pro se complaints and may only dismiss them 25 “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 26 would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). 27 1 III. Plaintiff’s Complaint 2 In his Complaint, Plaintiff identifies multiple statutes alleging each was violated. ECF No. 3 1-1 at 3. However, while the pleaded facts in the Complaint allege an injury, Plaintiff fails to plead 4 facts and attribute them to any particular claim or defendant. A claim under § 1985, for example, 5 requires an alleged conspiracy based on some racial or otherwise class-based “invidious 6 discriminatory animus.” Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001). A 7 claim under § 2000a similarly requires an allegation of discrimination in access to public 8 accommodations on the basis of race or other protected class. Dunn v. Albertsons, Case No. 2:16- 9 cv-02194-GMN-PAL, 2017 WL 3470573 (D. Nev. Aug. 10, 2017). Plaintiff’s attempt to assert a 10 claim under 18 U.S.C. § 15911 fails because private citizens have no cognizable legal interest in the 11 enforcement of criminal statutes, Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). The statute 12 on which Plaintiff bases his remaining claim, the D.C. Human Rights Act, D.C. Code § 2-1401.01, 13 is inapplicable outside of Washington, D.C. 14 Rule 8 of the Federal Rules of Civil Procedure requires a complaint to plead sufficient facts 15 to give a defendant fair notice of the claims against him and the grounds upon which it rests. 16 Yamaguchi v. United States Department of Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997) (citations 17 omitted). Plaintiff’s allegations do not assert a coherent set of facts sufficient to state a plausible 18 claim for relief to which each Defendant could respond. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th 19 Cir. 2010) (although pro se pleadings are construed liberally, a plaintiff must present factual 20 allegations sufficient to state a plausible claim for relief). Plaintiff’s Complaint says some defendant 21 did him wrong, but fails to put each defendant on sufficient notice of the claims against 22 it/him/her/them as required by Rule 8. Benitez v. Schumacher, Case No. 2:20-cv-00396-FMO-SHK, 23 2020 WL 6526352, at *12 (C.D. Cal. May 4, 2020). 24 Further, because there is no operative complaint, no summonses will issue. And, as stated 25 above, Plaintiff’s application to proceed in forma pauperis is granted. Therefore, the Motion to Send 26 Non-Inmate IFP Application is denied as moot. 27 1 Plaintiff’s Complaint cites 42 U.S.C. § 1591, a provision relating to housing for military personnel. Given the 1 IV. Order 2 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Application to proceed in forma 3 pauperis (ECF No. 1) is GRANTED. 4 IT IS FURTHER ORDERED that Plaintiff’s Complaint (ECF No. 1-1) is DISMISSED 5 without prejudice. 6 IT IS FURTHER ORDERED that Plaintiff must, if he so chooses, file an amended complaint 7 no later than December 23, 2024. Plaintiff’s amended complaint must include a clear and simple 8 set of facts that ties specific harms to specific defendants. Plaintiff is advised that his amended 9 complaint must be complete in and of itself. The Court cannot refer to Plaintiff’s original Complaint 10 when screening an amended complaint. 11 IT IS FURTHER ORDERED that the Clerk of Court must send Plaintiff the form complaint 12 for a non-inmate and the instructions for completing the same. 13 IT IS FURTHER ORDERED that Plaintiff’s Motion [Requesting] Serv[ice] of Summons to 14 All Parties (ECF No. 4) and Motion for Non-Inmate IFP Application are DENIED as moot. 15 IT IS FURTHER ORDERED that failure to timely comply with this Order will result in a 16 recommendation to dismiss this action in its entirety. 17 V. Recommendation 18 IT IS HEREBY RECOMMENDED that Plaintiff’s claim under 18 U.S.C. § 1591 be 19 DISMISSED with prejudice. 20 Dated this 22nd day of November, 2024. 21 22 ELAYNA J. YOUCHAH 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 NOTICE 1 2 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be 3 in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has 4 held that the courts of appeal may determine that an appeal has been waived due to the failure to file 5 objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also 6 held that (1) failure to file objections within the specified time and (2) failure to properly address 7 and brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 8 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 9 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27