2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JOSEPH JAMES SOUZA, Case No. 3:25-cv-00298-MMD-CLB

7 Plaintiff, ORDER v. 8

9 ERIC VANCLEEMPUT, et al.,

10 Defendants. 11 Pro se Plaintiff Joseph James Souza, who is incarcerated at Lovelock Correctional 12 Center, brings this action against Defendants Eric and Marjorie Vancleemput under 42

for violations of the Takings Clause of the Fifth Amendment and the Due 14 Process Clause of the Fourteenth Amendment, as well as for various state law tort claims. 15 (ECF No. 1-1.) Before the Court is United States Magistrate Judge Carla Baldwin’s Report 16 and Recommendation (ECF No. 5 (“R&R”)), recommending that the Court grant Souza’s 17 in forma pauperis (“IFP”) application and dismiss Souza’s Complaint (ECF No. 1-1) with 18 prejudice. As further explained below, the Court overrules Souza’s Objection in part, and 19 adopts the R&R in part. 20 The Court “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.”

(b)(1). Where a party 22 timely objects to a magistrate judge’s report and recommendation, the Court is required 23 to “make a de novo determination of those portions of the [report and recommendation] 24 to which objection is made.”

The Court’s review is thus de novo because Souza filed 25 his Objection. (ECF No. 6.) 26 /// 27 /// 28 /// 2 dismiss the Complaint because Souza brings his claim against private citizens, Eric and 3 Marjorie Vancleemput, and does not allege that the defendants were acting under color 4 of state law. (ECF No. 5 at 4.) Souza argues that Defendant Eric Vancleemput is “always 5 under color of law” because he is employed by the Nevada Department of Forestry and 6 is required to be on call at all times while employed. (ECF No. 6 at 4.) As Judge Baldwin 7 explained in her R&R, “[a] defendant has acted under color of state law where he or she 8 has ‘exercised power possessed by virtue of state law and made possible only because 9 the wrongdoer is clothed with the authority of state law.’” (ECF No. 5 at 4.) Souza’s 10 allegation that Defendant was always on call for his employer is not a colorable claim that 11 Defendant acted under color of state law. Additionally, Souza does not allege that 12 Marjorie Vancleemput acted under of state law, rather, he argues that she “conspired with 13 her husband” to commit various alleged harms to him. (ECF No. 6 at 4.) While “[a] private 14 individual may be liable under § 1983 if she conspired or entered joint action with a state 15 actor,” Franklin v. Fox,

(9th Cir. 2002), Souza merely asserts that 16 Marjorie Vancleemput “conspired with her husband,” who is not a state actor. Thus, the 17 Court agrees with Judge Baldwin and finds that Souza’s Complaint must be dismissed 18 with prejudice because he fails to state a colorable claim under § 1983, and amendment 19 is futile. 20 Souza further objects to Judge Baldwin’s recommendation to dismiss Souza’s 21 state law claims with prejudice. (ECF No. 5 at 4-5.) The Court agrees with Judge Baldwin 22 that the Court lacks federal question jurisdiction over the state law claims after the Court 23 dismisses the § 1983 claims, and that the Court further lacks diversity jurisdiction. (Id.) 24 Accordingly, Judge Baldwin correctly found that the Court cannot exercise supplemental 25 jurisdiction over the state law claims. The Court will dismiss the state law claims, but 26 27 1As to the remaining portions of the R&R that Plaintiff did not object to, the Court 28 adopts because the Court finds that Judge Baldwin did not clearly err. 1 || dismissal will be without prejudice because the Court lacks jurisdiction to adjudicate these 2 || claims. 3 It is therefore ordered that Souza’s objection (ECF No. 6) to Judge Baldwin’s 4 || Report and Recommendation (ECF No. 5) is overruled in part. 5 It is further ordered that Judge Baldwin’s Report and Recommendation (ECF No. 6 || 5) is adopted in part. 7 It is further ordered that Souza’s in forma pauperis application be granted. 8 It is further ordered that the Nevada Department of Corrections pay to the Clerk of 9 || the United States District Court, District of Nevada, 20% of the preceding month’s 10 || deposits to the account of JOSEPH JAMES SOUZA, #1290006 (in months that the 11 || account exceeds $10.00) until the full $350.00 filing fee has been paid for this action. 12 It is further ordered that the Clerk of Court file the complaint (ECF No. 1-1). 13 It is further ordered that Plaintiffs § 1983 claims are dismissed with prejudice. 14 || Plaintiff's state law claims are dismissed without prejudice for lack of subject matter 15 || jurisdiction. 16 The Clerk of Court is directed to enter judgment accordingly and close this case. 17 DATED THIS 1* Day of August 2025.

19 MIRANDA M. DU 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28