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Avila v. Doe

United States District Court, D. Nevada

February 1, 2017

WESLEY N. AVILA, Plaintiff,
v.
SERGEANT JOHN DOE, et al., Defendants.

         Application to Proceed in Forma Pauperis (ECF No. 1) and Screening of Complaint (ECF No. 1-1)

          ORDER

          GEORGE FOLEY, JR., UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's Application to Proceed in Forma Pauperis (ECF No. 1), filed on August 1, 2016. Also before the Court is Plaintiff's Motion for Appointment of Counsel (ECF No. 2), filed on August 1, 2016.

         BACKGROUND

         Plaintiff brings this complaint pursuant to 42 U.S.C. § 1983 alleging that two unknown officers and an unknown sergeant from the Henderson Police Department violated his civil rights on or about November 25, 2014.[1] Plaintiff alleges that on November 25, 2014, Defendants unreasonably executed a search warrant that they obtained to search Plaintiff's home in an attempt to locate a hit and run suspect. Plaintiff states that when the officers arrived at his home, he gave them the key to his home, advised them that all of the doors were unlocked and open, and then he and his family left the home as instructed. Upon returning home, approximately eight hours later, Plaintiff observed that his home and his personal belongings were completely destroyed. He alleges for instance, that every window was blown out, the doors were ripped off the hinges, and there was tear gas covering everything in the home. Plaintiff therefore alleges that Defendants violated his civil rights by “executing [a] search warrant with excessive and unnecessary use of destructive force upon [his] residence.”

         DISCUSSION

         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 Plaintiff's 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

         Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

         In addition to the screening requirements under § 1915A, pursuant to the PLRA, a federal court must dismiss a prisoner's claims, “if the allegation of poverty is untrue, ” or if the action “is frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint.

         Review under Fed.R.Civ.P. 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-1965 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., See Papasan v. Allain, 478 U.S. 265, 286 (1986).

         All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims 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 which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

         III. ...


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