United States District Court, D. Nevada
ORDER AND REPORT & RECOMMENDATION APPLICATION TO
PROCEED IN FORMA PAUPERIS (ECF NO.1) AND COMPLAINT (ECF NO.
FERENBACH UNITED STATES MAGISTRATE JUDGE
the Court are Albanese's application to proceed in
forma pauperis (ECF No. 1) and complaint (ECF No. 1-1).
For the reasons stated below, the Court recommends that
Albanese's complaint be dismissed.
In Forma Pauperis
28 U.S.C. § 1914(a), a filing fee is required to
commence a civil action in federal court. Courts may
authorize the commencement of an action without prepayment of
fees and costs or security therefor, by a person who submits
an affidavit that includes a statement showing the person is
unable to pay such costs. See 28 U.S.C. §
1915(a)(1). The standard governing in forma pauperis
eligibility under 28 U.S.C. § 1915(a)(1) is
“unable to pay such fees or give security
therefor.” Id. Determining what constitutes
“unable to pay” or unable to “give security
therefor” and, therefore whether to allow a plaintiff
to proceed in forma pauperis, is left to the
discretion of the courts, based on the information submitted
by the plaintiff. See, e.g., Dillard v. Liberty
Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980) (“A
district court has discretion to grant or deny an in forma
pauperis petition filed under s 1915.”); Fridman v.
City of New York, 195 F.Supp.2d 534, 536 (S.D.N.Y.),
aff'd, 52 Fed.Appx. 157 (2nd Cir. 2002).
has requested authority to proceed in forma pauperis
and submitted the required affidavit. See ECF No. 1.
Other than the small amount Albanese brings in from
“panhandling, ” she has no income or assets.
Id. The Court finds that she is unable to pay fees
and costs or give security for them. Based on Albanese's
state of penury, the Court grants her application to proceed
in forma pauperis.
Screening the Complaint Under 28 U.S.C. §
granting a request to proceed in forma pauperis, the
Court must screen a complaint under 28 U.S.C. §
1915(e)(2). Federal courts are given the authority to dismiss
a case if the action (1) is legally “frivolous or
malicious, ” (2) fails to state a claim upon which
relief may be granted, or (3) seeks monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2). Section 1915 was enacted to
conserve judicial resources by empowering courts to dismiss
actions, “which fall somewhere between the frivolous
and the farcical and so foster disrespect for our
laws.” Crawford-El v. Britton, 523 U.S. 574,
601 (1998) (Kennedy, J., concurring).
pro se litigant is involved, however, courts are
directed to hold the litigant to “less stringent
standards.” See Haines v. Kerner, 404 U.S.
519, 520 (1972). “Such litigants often lack the
resources and freedom necessary to comply with the technical
rules of modern litigation.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)
(citing Moore v. Florida, 703 F.2d 516, 520 (11th
court dismisses a complaint under § 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 Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation
omitted). However, pro se litigants “should
not be treated more favorably than parties with attorneys of
record, ” Jacobsen v. Filler, 790 F.2d 1362,
1364 (9th Cir. 1986); rather, they must follow the same rules
of procedure that govern other litigants. See Ghazali v.
Moran, 46 F.3d 52, 54 (9th Cir. 1995).
Complaint in this matter is a one-page document naming the
Las Vegas Metropolitan Police Department
(“Metro”) as the defendant. See ECF No.
1-1. Albanese claims a violation of her civil rights under 42
U.S.C. § 1983, obstruction of justice, and a denial of
equal protection under the law. Id. Albanese's
complaint states in its entirety the following:
Denying me equal protection under the law by not informing me
1107 E-Desert Inn # 3 and 9 are observing me in my room. And
that listening device is being use by them to spy on me.
Obstruction of justice by not informing law enforcement that
Apts. 3 and 9 are observing me in my room and that Apt 3 has
hacked into my phone.
Id. She seeks $500, 000 in damages. Id. For
the reasons discussed below, the Court finds that
Albanese's complaint should be dismissed as frivolous
because its claims are duplicative of the claims in
Albanese's other pending actions.
are not required to entertain duplicative or redundant
lawsuits and may dismiss them as frivolous or malicious under
§ 1915(e). See Cato, 70 F.3d at 1105 n. 2
(noting that courts may dismiss under § 1915 a complaint
that merely repeats pending or previously litigated claims);
see also Aziz v. Burrows, 976 F.2d 1158, 1158 (8th
Cir. 1992) (“district courts may dismiss a duplicative
complaint raising issues directly related to issues in
another pending action brought by the same party”);
Adams v. Cal. Dep't of Health Servs., 487 F.3d
684, 688 (9th Cir. 2007) (“Plaintiffs generally have
‘no right to maintain two separate actions involving
the same subject matter at the same time in the same court
and against the same defendant.”), overruled in