1

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 ROBERT W. JOHNSON, Case No. 2:24-cv-01578-RFB-NJK 6 Plaintiff(s), REPORT AND RECOMMENDATION 7 v. 8 NEVADA DIVISION OF WELFARE AND 9 SUPPORTIVE SERVICES, 10 Defendant(s). 11 Plaintiff is proceeding in this action pro se and has requested authority pursuant to 12

to proceed in forma pauperis. Docket No. 1. 13 I. In Forma Pauperis Application 14 Plaintiff filed an amended affidavit required by § 1915(a). Docket No. 1. Plaintiff has 15 shown an inability to prepay fees and costs or give security for them. Accordingly, the request to 16 proceed in forma pauperis will be granted pursuant to

(a). The Clerk’s Office is 17 further INSTRUCTED to file the complaint on the docket. The Court will now review Plaintiff’s 18 complaint. 19 II. Screening the Complaint 20 Federal courts are given the authority to dismiss a case if the action is legally “frivolous or 21 malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief from 22 a defendant who is immune from such relief.

(e)(2). When a court dismisses a 23 complaint under § 1915, the plaintiff should be given leave to amend the complaint with directions 24 as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies 25 could not be cured by amendment. See Cato v. United States,

(9th Cir. 1995). 26 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 27 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is 28 essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am.,

, 723 1 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim 2 showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. 3 Twombly,

(2007). Although Rule 8 does not require detailed factual allegations, 4 it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause 5 of action.” Ashcroft v. Iqbal,

(2009) (citing Papasan v. Allain,

, 6 286 (1986)). The court must accept as true all well-pled factual allegations contained in the 7 complaint, but the same requirement does not apply to legal conclusions. Iqbal,

. 8 Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do 9 not suffice.

. Secondly, where the claims in the complaint have not crossed the line from 10 conceivable to plausible, the complaint should be dismissed. Twombly,

. 11 Plaintiff brings this action seeking millions of dollars in money damages pursuant to 42

. See Docket No. 1-1 at 3, 5. The complaint alleges in conclusory terms that the 13 Nevada Division of Welfare and Supportive Services discriminated against Plaintiff in myriad 14 ways. See

. Plaintiff’s complaint fails as a matter of law for at least two reasons.1 First, 15 states are not considered “persons” for purposes of claims brought pursuant to

. 16 Will v. Mich. Dept. of State Police,

(1989). Second, states are immune from federal 17 damages claims pursuant to the Eleventh Amendment of the United States Constitution. 18 Franceschi v. Schwartz,

(9th Cir. 1995). The Division, as a state agency, is not 19 amenable to suit and any effort to amend would be futile. See Rowell v. Sisolak,

2744080, at *2 (D. Nev. May 5, 2020) (in screening § 1983 claim involving Nevada’s Department 21 of Health and Human Services, Division of Welfare and Supportive Services, explaining that it is 22 a state agency protected by Eleventh Amendment immunity and that the claim was subject to 23 dismissal without leave to amend), adopted,

(D. Nev. May 26, 2020); see also 24 N.R.S. 41.031(3) (“The State of Nevada does not waive its immunity from suit conferred by 25 Amendment XI of the Constitution of the United States”). 26 27 1 In light of the findings herein, the Court need not opine on other deficiencies in the 28 complaint. ] Accordingly, the undersigned RECOMMENDS that Plaintiffs complaint be DISMISSED without leave to amend. 3 Dated: September 5, 2024 4 A A □ Nancy J. Ke 5 United States Magistrate Judge 6 NOTICE 7 This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to

(b)(1). A party who objects to this report and 9] recommendation must file a written objection supported by points and authorities within fourteen 10] days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file 11] a timely objection may waive the right to appeal the district court’s order. Martinez v. YIst, 951 12] F.2d 1153, 1157 (9th Cir. 1991). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28