United States District Court, D. Nevada
ORDER (IFP APP. - ECF NO. 1)
A. LEEN, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff Ann Gates
Middleton's Application to Proceed In Forma
Pauperis (ECF No. 1). This Application is referred to
the undersigned pursuant to 28 U.S.C. § 636 (a) and
Local Rules LR IB 1-3 and 1-7 of the Local Rules of Practice.
Forma Pauperis Application
Middleton is proceeding in this action pro se, which
means that he is not represented by an attorney. See
LSR 2-1. Pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the
Local Rules of Practice, any person who is unable to prepay
the fees in a civil case may apply to the Court for authority
to proceed in forma pauperis (“IFP”),
meaning without prepaying the full $400 filing fee. Here, Ms.
Middleton has requested authority to proceed IFP and
submitted the affidavit required by § 1915(a) showing
that she is unable to prepay fees and costs or give security
for them. Accordingly, her request to proceed IFP will be
granted. The court will now review the Complaint.
Screening the Complaint
granting a litigant's IFP request, a federal court must
screen the complaint and any amended complaints filed prior
to a responsive pleading pursuant to § 1915(e).
Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)
(en banc) (§ 1915(e) applies to “all in forma
pauperis complaints”). If the complaint states a valid
claim for relief, the court will direct the Clerk of the
Court to issue summons to the defendant(s) and the plaintiff
must then serve the summons and complaint within 90 days.
See Fed. R. Civ. P. 4(m). When a court dismisses a
complaint pursuant to § 1915(e), a plaintiff is
ordinarily given leave to amend 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. Cato v. United States, 70 F.3d 1103, 1106
(9th Cir. 1995).
Middleton's Factual Allegations and Claims for Relief
action involves a mortgage note and deed of trust for the
real property of 7754 Pink Ginger Street, Las Vegas, Nevada
(the “Property”). See Compl. (ECF No.
1-1) at 3. Ms. Middleton alleges she executed a mortgage loan
on March 15, 2012. Id. On March 12, 2015, Middleton
sent defendants Wells Fargo Bank and Guaranteed Rate, Inc. a
notice of rescission pursuant to Federal Reserve Board
Regulation Z, 12 C.F.R. § 226.23, and 15 U.S.C. §
1635, which are statutes and regulations regarding the Truth
in Lending Act (“TILA”), 15 U.S.C. §§
1601- 1667f. However, she alleges that defendants have not
complied with their statutory obligations as a lender under
the notice of rescission. Id. In August 2015, Ms.
Middleton recorded a Notice of Release of Mortgage under
operation of law. Id. at 4. Defendants did not
respond. Id. Middleton seeks a declaratory judgment
that the mortgage note related to the Property is terminated,
released, void, and invalid. Id. at 4-6.
Additionally, she seeks restitution based on Carrington's
non-compliance with statutory requirements. Id. at
reasons discussed below, the court finds that the complaint
fails to state a claim upon which relief can be granted.
courts are required to dismiss an in forma pauperis
action if the complaint fails to state a claim upon which
relief may be granted, is legally “frivolous or
malicious, ” or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2).
In determining whether a complaint is frivolous and therefore
warrants complete or partial dismissal, a court is not bound
to accept without question truth of plaintiff's
allegations. Denton v. Hernandez, 504 U.S. 25, 32
(1992). Allegations are frivolous when they are
“clearly baseless, ” id., or lack an
arguable basis in law and fact. Neitzke v. Williams,
490 U.S. 319, 325 (1989). Frivolous claims include those
based on legal conclusions that are untenable (e.g.,
claims against defendants who are immune from suit or claims
of infringement of a legal interest that clearly does not
exist), as well as claims based on fanciful factual
allegations (e.g., fantastic or delusional
scenarios). Id. at 327-28; McKeever v.
Block, 932 F.2d 795, 798 (9th Cir. 1991). The standard
for determining whether a plaintiff has failed to state a
claim upon which relief can be granted under § 1915 is
the same as the standard under Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim.
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). Review under Rule 12(b)(6) is essentially a ruling on
a question of law. N. Star Intern. v. Ariz. Corp.
Comm'n, 720 F.2d 578, 580 (9th Cir. 1983).
purposes of § 1915's screening requirement, a
properly pled complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2); accord Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
simplified pleading standard set forth in Rule 8(a) of the
Federal Rules of Civil Procedure applies to all civil actions
with limited exceptions. Alvarez v. Hill, 518 F.3d
1152, 1159 (9th Cir. 2008). Although Rule 8 does not require
detailed factual allegations, it demands “more than
labels and conclusions” or a “formulaic
recitation of the elements of a cause of action.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). This requires a plaintiff to state
“enough facts to raise a reasonable expectation that
discovery will reveal evidence” of the allegations
charged. Cafasso, United States ex rel. v. General
Dynamics C4 Systems, Inc., 637 F.3d 1047, 1055 (9th Cir.
2011) (quoting Twombly, 550 U.S. at 556). Mere
recitals of the elements of a cause of action supported only
by conclusory allegations do not suffice. Iqbal, 556
U.S. at 679-80. A complaint “must contain sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). Secondly, where the claims in the
complaint have not crossed the line from plausible to
conceivable, the complaint should be dismissed.
Twombly, 550 U.S. at 570. Stated differently, the
factual allegations “must plausibly suggest an
entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of
discovery and continued litigation.” Starr,
652 F.3d at 1216.
in a pro se complaint are held to less stringent
standards than formal pleading drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Hebbe v. Pliler, 627 F.3d 338, 342 n.7 (9th Cir.
2010) (joining five other circuits finding that liberal
construction of pro se pleadings is still required
after Twombly and Iqbal). However, pro
se litigants “should not be treated more favorably
than parties with attorneys of record, ” Jacobsen
v. Filler, 790 F.2d 1362, 1364 (9th Cir. ...