United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge
before the court is Plaintiff Rigoberto Enrique Isaza's
application to proceed in forma pauperis (ECF No.
4), filed on October 15, 2015. Also before the court is
Plaintiff's civil rights complaint filed under 42 U.S.C.
§ 1983. (Compl. (ECF No. 1).) Plaintiff is a pro se
inmate in the custody of the Nevada Department of
IN FORMA PAUPERIS APPLICATION
submitted the declaration required by 28 U.S.C. §1915(a)
showing an inability to prepay fees and costs or to give
security for them. Based on the information regarding
Plaintiff's financial status, the court finds Plaintiff
is unable to pay an initial installment toward the full
filing fee required under 28 U.S.C. § 1915(b). However,
Plaintiff will be required to make installment payments
toward the full $350.00 filing fee when he has funds
available. Plaintiff's request to proceed in forma
pauperis therefore will be granted.
case arises out of a family dispute regarding rents owed on a
home located in Las Vegas, Nevada. Plaintiff alleges that his
mother, Maria Trotter, died in 1996, and that her will left
her home to Plaintiff and his brother, Carlos Isaza. (Compl.
(ECF No. 1) at 3.) Plaintiff alleges that he spoke to a
Farmer's Insurance representative named Donna who
confirmed the existence of his mother's will and stated
that there were two witnesses to the will. (Id. at
4.) Plaintiff further alleges that Defendant Earl Marshal
Trotter, another extended family member, has been
coordinating the rental of the home to Earl's uncle and
daughter for $1, 200 per month since 1999. (Id.)
Plaintiff contends that the rent proceeds should have been
paid to Plaintiff and his brother, Carlos, but that Earl has
been “defrauding [Plaintiff] of the 600 every month
since approx[imately] 2004.” (Id.)
Specifically, he contends that Earl has defrauded him of $88,
000. (Id. at 5.) In contrast, Plaintiff alleges that
Earl has been giving Carlos thousands of dollars.
(Id. at 4.)
now brings claims under 42 U.S.C. § 1983 against
Defendant Earl Trotter for “violation of probate
law” (claim one), for deprivation of his Fourteenth
Amendment rights related to “breach of will”
(claim two), and for “immunities; equity; breach of
will” (claim three). (Id. at 4-6.) He also
brings a claim against Defendant Farmers Insurance for
“failure to supply plaintiff with sealed will
copy.” (Id. at 2, 4, 7.) Plaintiff seeks $88,
000 in monetary damages, punitive damages for the alleged
civil rights violations, an injunction ordering the unsealing
of the will, and other miscellaneous costs. (Id. at
courts must conduct a preliminary screening in any civil case
“in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 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. Id.
§ 1915A(b)(1), (2). In addition to the screening
requirements under § 1915A, under the Prison Litigation
Reform Act, the court must dismiss the case if “the
allegation of poverty is untrue” or if the court
determines 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.” Id. § 1915(e)(2).
for failure to state a claim under § 1915A incorporates
the standard for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Nordstrom v. Ryan, 762
F.3d 903, 908 (9th Cir. 2014). To survive § 1915A
review, a complaint must “contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). The court liberally
construes pro se civil rights complaints and may only dismiss
them “if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” Id. (quoting
Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although 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, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave to amend
the complaint with notice regarding the complaint's
deficiencies. Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995).
42 U.S.C. § 1983 provides that “[e]very person
who, under color of [law], subjects, or causes to be
subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law . . . .” Section 1983 does
not create any substantive rights, but provides a method for
enforcing rights contained in the Constitution or federal
statutes. Crowley v. Nev. ex. rel. Nev. Sec'y of
State, 678 F.3d 730, 734 (9th Cir. 2012). To state a
claim under 42 U.S.C. § 1983, a plaintiff must allege
“(1) the defendants acting under color ...