United States District Court, D. Nevada
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
the court is Plaintiff's Application to Proceed in Forma
Pauperis (IFP) (Electronic Case Filing (ECF) No. 1), and pro
se complaint (ECF No. 1-1). Also before the court is
Plaintiff's Motion for Authorization to Become an
Electronic Filer Pursuant to Local Rule IC 2-1(B). (ECF No.
APPLICATION FOR LEAVE TO PROCEED IFP
person may be granted permission to proceed IFP if the person
"submits an affidavit that includes a statement of all
assets such [person] possesses [and] that the person is
unable to pay such fees or give security therefor. Such
affidavit shall state the nature of the action, defense or
appeal and affiant's belief that the person is entitled
to redress." 28 U.S.C. § 1915; Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)
(stating that this provision applies to all actions filed in
forma pauperis, not just prisoner actions).
addition, the Local Rules of Practice for the District of
Nevada provide: “Any person who is unable to prepay the
fees in a civil case may apply to the court for authority to
proceed [IFP]. The application must be made on the form
provided by the court and must include a financial affidavit
disclosing the applicant's income, assets, expenses, and
liabilities.” LSR 1-1. "'[T]he supporting
affidavits [must] state the facts as to [the] affiant's
poverty with some particularity, definiteness and
certainty.'" U.S. v. McQuade, 647 F.2d 938,
940 (9th Cir. 1981) (quoting Jefferson v. United
States, 277 F.2d 823, 725 (9th Cir. 1960)). A litigant
need not "be absolutely destitute to enjoy the benefits
of the statute." Adkins v. E.I. Du Pont De Nemours
& Co., 335 U.S. 331, 339 (1948).
review of Plaintiff's IFP application reveals he is
unable to pay the filing fee; therefore, his application is
U.S.C. § 1915 provides: "the court shall dismiss
the case at any time if the court determines that...the
action or appeal (i) is frivolous or malicious; (ii) fails to
state a claim upon which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). This
provision applies to all actions filed in forma pauperis,
whether or not the plaintiff is incarcerated. See Lopez
v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc);
see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir.
2001) (per curiam).
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 this court applies the same standard
under Section 1915(e)(2)(B) when reviewing the adequacy of
the complaint or amended complaint. See Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (citation
omitted). Review under 12(b)(6) is essentially a ruling on a
question of law. See Chappel v. Lab. Corp. of
America, 232 F.3d 719, 723 (9th Cir. 2000).
reviewing the complaint under this standard, the court must
accept as true the allegations of the complaint, Hosp.
Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740
(1976), construe the pleadings in the light most favorable to
plaintiff, and resolve all doubts in the plaintiff's
favor, Jenkins v. McKeithen, 395 U.S. 411, 421
(1969). Allegations in pro se complaints are held to less
stringent standards than formal pleadings drafted by lawyers,
and must be liberally construed. See Hughes v. Rowe,
449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (per curiam); Hamilton v.
Brown, 630 F.3d 889, 893 (9th Cir. 2011).
complaint must contain more than a "formulaic recitation
of the elements of a cause of action, " it must contain
factual allegations sufficient to "raise a right to
relief above the speculative level." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The
pleading must contain something more...than...a statement of
facts that merely creates a suspicion [of] a legally
cognizable right of action." Id. (quoting 5 C.
Wright & A. Miller, Federal Practice and Procedure §
1216, at 235-36 (3d ed. 2004)). At a minimum, a plaintiff
should state "enough facts to state a claim to relief
that is plausible on its face." Id. at 570;
see also Ashcroft v. Iqbal, 556 U.S. 662, 678
dismissal should not be without leave to amend unless it is
clear from the face of the complaint that the action is
frivolous and could not be amended to state a federal claim,
or the district court lacks subject matter jurisdiction over
the action. See Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995) (dismissed as frivolous);
O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.
has filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983 against Nevada Attorney General Adam Paul Laxalt;
Director of Nevada Department of Public Safety James Wright;
Chief of the Division of Parole and Probation Natalie Wood;
Chief of Records and Technology Division of the Nevada
Department of Public Safety Patrick J. Conmay; and, Parole
Officer K. Lomprey.
alleges that he is a convicted sex offender who has been
paroled with lifetime supervision. He claims that Defendants
have represented that they will soon begin to retroactively
impose punitive conditions upon him that did not exist at the
time of his offense including residence and movement
requirements. His complaint contains ten counts.
Count I, Plaintiff asserts a denial of his due process rights
because offenders on lifetime supervision do not have an
adequate hearing advising them of the conditions being
imposed by the Board of Parole Commissioners (Board). He also
alleges that Nevada Revised Statute (NRS) 213.1243 is void
for vagueness because it does not put offenders on notice of
the conditions imposed by the program of lifetime
supervision, which he contends also violates his due process
rights. He further claims that the version of NRS 213.1243 in
effect at the time of his offense does not sufficiently
define what constitutes a violation of a condition. Nor does
it list the conditions he could potentially violate, which
contravenes his due process rights. He then states that NRS
213.1243 is unconstitutional because it gives the Board
unfettered discretion to create and impose conditions of
lifetime supervision. He claims that if a hearing is given,
the offender does not have an opportunity to make a
statement, and many times the Board imposes conditions in the
absence of the offender. After the conditions are set, the
offender cannot contest them.
the allegations as true, and construing them liberally, as
the court must at this stage, the court concludes Plaintiff
states colorable claims that NRS 213.1243 violates the due
process clause of the constitution and is unconstitutionally
vague, both as it existed at the time ...