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Pincombe v. Collins

United States District Court, District of Nevada

November 6, 2014

IAN PINCOMBE, Plaintiff,
CHARLOTTE COLLINS et. al., Defendant

Ian Pincombe, Plaintiff, Pro se, Pahrump, NV.


GEORGE FOLEY, JR., United States Magistrate Judge.

Application to Proceed in Forma Pauperis (#1) and Screening of the Complaint

This matter is before the Court on Ian Pincombe's Application to Proceed In Forma Pauperis and Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (#1), filed on August 14, 2014.


Plaintiff alleges in his complaint that Defendants Charlotte Collins and the Corrections Corporation of America have denied him access to the courts by refusing to allow him to print all of his legal documents and reading his correspondence with his attorney. Plaintiff alleges only one cause of action, but it contains numerous allegations of wrongdoing and violated rights. Plaintiff is in federal custody and is awaiting trial in a criminal case.[1] Plaintiff alleges that he is attempting to assist his attorneys by performing legal research at the prison library. He claims that the law librarian, Mrs. Tigrett, has refused to print his legal documents. Mrs. Tigrett allegedly told the Plaintiff that she would not print the documents because it was regarding jurisdiction and the public defender's office said it was not necessary, because jurisdiction is within the attorney's scope of the action. The Plaintiff contends that Mrs. Tigrett had no right to read the documents, since they are privileged, and the research he is doing is necessary for his defense. He alleges that the public defender's office will only file motions or cooperate with his defense if he provides them with case law. Plaintiff filed an informal grievance over these actions on June 20, 2014. The Staff, in its July 2, 2014 response, told the Plaintiff that " Per policy 14-8 and Lewis v. Casey you do not qualify for assistance. Legal document will not be provided."

Plaintiff filed a formal grievance on July 3, 2014, in which he cited Gluth v. Kansas and argued that Lewis v. Casey did not support the facility's position. He then requested more than one hour per day of library time, that he be allowed more than three copies of documents and case law, that the facility provide full data on uncensored cases, that the facility provide legal forms and that documents that are printed are not to be taken off site or read. The facility declined all of his requests in its response, again relying on Lewis v. Casey . The facility noted, however, that he is free to use the law library, and simply needs to schedule a time.

On August 8, 2014, the Plaintiff took his grievance to the Warden. The Plaintiff claims the Warden promised to resolve the situation and get the Plaintiff his printed materials on August 11, 2014. Plaintiff, as of the filing of this case on August 14, 2014, had not yet received his printed materials. Plaintiff alleges that the actions of the facility constitute a violation of his right of access to the courts and a violation of the attorney-client privilege. Plaintiff asks that he be allowed to print his motions in a timely fashion without them being read, and to be allowed to have three or more copies of motions or legal materials that are critical to his defense.


I. Application to Proceed In Forma Pauperis

Plaintiff filed this instant action and attached a financial affidavit to his application and complaint as required by 28 U.S.C. § 1915(a). Reviewing the financial affidavit pursuant to 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result, Plaintiff's request to proceed in forma pauperis in federal court is granted.

II. Screening the Complaint

Upon granting a request to proceed in forma pauperis, a court must screen the complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to dismiss a case if the action is legally " frivolous or malicious, " fails to state a claim upon which relief may be granted, or seeks monetary relief from a Defendant/Third Party Plaintiff who is immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for failure to state a claim upon which relief may be granted " if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed as frivolous if it is premised on a nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Moreover, " a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

The Court shall liberally construe a complaint by a pro se litigant. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 2007). This is especially important for civil rights complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, a liberal construction may not be used to supply an essential element of the claim absent from the complaint. Bruns v. NCUA., 1222 ...

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