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Corzine v. Laxalt

United States District Court, D. Nevada

February 17, 2017

ADAM PAUL LAXALT, et. al., Defendants.



         Before 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. 3.)


         A 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).

         In 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).

         A review of Plaintiff's IFP application reveals he is unable to pay the filing fee; therefore, his application is granted.

         II. SCREENING

         A. Standard

         28 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).

         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 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).

         In 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).

         A 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 (2009).

         A 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. 1990).

         B. Plaintiff's Complaint

         Plaintiff 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.

         Plaintiff 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.

         In 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.

         Taking 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 ...

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