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) and complaint. (ECF Nos. 1, 2-1.)
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
IFP, 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 application reveals that he is
unable to pay the filing fee. As a result, Plaintiff's
application to proceed IFP (ECF No. 1) is granted.
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.
complaint names Nancy Berryhill, Acting Commissioner of
Social Security, and requests review of the
Commissioner's final decision. (ECF No. 2-1.)
courts have sole jurisdiction to conduct judicial review of
the Social Security Administration's determination in
this regard. See 42 U.S.C. § 405(g). Upon a
review of Plaintiff's complaint, it appears he has
exhausted his administrative remedies with the ...