United States District Court, D. Nevada
TERENCE E. RUBEN, Plaintiff,
CITY OF LAS VEGAS, TEXAS CITY, Defendants.
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (ECF
NO. 1) AND COMPLAINT (ECF NO. 1-1)
FERENBACH UNITED STATES MAGISTRATE JUDGE.
a civil rights violation case brought by Plaintiff Terence E.
Ruben against Las Vegas and Texas City. Before the Court are
Ruben's application to proceed in forma pauperis
(ECF No. 1) and Complaint (ECF No. 1-1). Ruben's in
forma pauperis application is granted. For the reasons
stated below, however, Ruben's Complaint is dismissed
with leave to amend.
filings present two questions: (1) whether Ruben may proceed
in forma pauperis under 28 U.S.C. § 1915(e),
and (2) whether Ruben's Complaint states a plausible
claim for relief.
application to proceed in forma pauperis is granted.
28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a
civil action “without prepayment of fees or security
thereof” if the plaintiff submits a financial affidavit
that demonstrates the plaintiff's “is unable to pay
such fees or give security therefor.” Under §
1915(a)(1), Ruben submitted a financial affidavit. ECF No. 1.
According to the affidavit, Ruben is disabled and unemployed.
Id. at 6. Monthly disability checks for $408 are his
only source of income. Id. at 1-2. Ruben has no
savings. Id. at 3. The income Ruben does collect for
his disability goes to basic living expenses, including
supporting his 16-year old daughter. Id. at 4-5.
Ruben's application to proceed in forma pauperis
is, therefore, granted.
Screening the Complaint
the Court grants Ruben's application to proceed in
forma pauperis, it must review the Complaint to
determine whether the Complaint 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. See 28 U.S.C. §
1915(e)(2). The Court's review of Ruben's Complaint
is guided by two legal standards: (1) Federal Rule of Civil
Procedure 8 and (2) the Supreme Court's decision in
Erickson v. Pardus, 551 U.S. 89 (2007).
Rule of Civil Procedure 8(a) also provides that a complaint
“that states a claim for relief must contain . . . a
short and plain statement of the claim showing that the
[plaintiff] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The Supreme Court's decision in Ashcroft v.
Iqbal, states that in order to satisfy Rule 8's
requirements a complaint's allegations must cross
“the line from conceivable to plausible.” 556
U.S. 662, 680 (2009). The Court's decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) and
Iqbal prescribe a two-step procedure to determine
whether a complaint's allegations cross that line.
the court must identify “the allegations in the
complaint that are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679, 680. Factual
allegations are not entitled to the assumption of truth if
they are “merely consistent with liability, ”
id. at 678, or “amount to nothing more than a
‘formulaic recitation of the elements' of a
constitutional” claim. Id. at 681.
the court must determine whether the complaint states a
“plausible” claim for relief. Id. at
679. A claim is “plausible” if the factual
allegations, which are accepted as true, “allow the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at
678. This inquiry is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679
(citation omitted). If the factual allegation, which are
accepted as true, “do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged-but it has not “show[n]”-“that
the pleader is entitled to relief.” Id.
(citing Fed.R.Civ.P. 8(a)(2)).
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson, 551 U.S. at 94 (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). But a
complaint is clearly baseless if the facts alleged rise to
the level of the irrational or wholly incredible, or if the
complaint describes a fanciful, fantastic, or delusional
scenario. See Ancar v. Sara Plasma, Inc., 964 F.2d
465 (5th Cir. 1992); see also Nw. Nat'l Ins. Co. v.
Baltes, 15 F.3d 660, 662 (7th Cir.1994) (“It is
not the Court's job to laboriously search the Complaint
for factual assertions that could, in theory, be used to
support one legal claim or another. District judges are not
archaeologists. They need not excavate masses of papers in
search of revealing tidbits”); Jennings v.
Entry, 910 F.2d 1434, 1436 (7th Cir. 1990) (“[A]
complaint must be presented ‘with clarity sufficient to
avoid requiring a district court or opposing party to forever
sift through its pages in search of plaintiff's
claim”); Sparling v. Hoffman Constr. Co., 864
F.2d 635, 640 (9th Cir. 1988) (“If the factual elements
of a cause of action are scattered throughout the complaint
but are not organized into a “short and plain statement
of the claim, ” dismissal for failure to satisfy Rule
8(a) is proper”).
Court dismisses a complaint under section 1915(e), the
plaintiff should be given leave to amend the complaint with
directions as to curing its deficiencies, unless it is clear
from the face of the complaint that the deficiencies could
not be cured by amendment. See ...