United States District Court, D. Nevada
WESLEY N. AVILA, Plaintiff,
SERGEANT JOHN DOE, et al., Defendants.
to Proceed in Forma Pauperis (ECF No. 1) and
Screening of Complaint (ECF No. 1-1)
FOLEY, JR., UNITED STATES MAGISTRATE JUDGE
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.
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. 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.”
Application to Proceed In Forma Pauperis
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.
Screening the Complaint
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).
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.
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).
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).