United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
the court is Plaintiff's Application to Proceed In Forma
Pauperis (IFP) (ECF No. 1) and pro se Complaint (ECF No.
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(a)(1); Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)
(stating that 28 U.S.C. § 1915 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.
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 723, 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 the application to proceed IFP reveals Plaintiff
cannot pay the filing fee; therefore, the application should
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 IFP, whether or not the plaintiff is
incarcerated. See Lopez, 203 F.3d at 1129; see
also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per
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 28 U.S.C. § 1915(e)(2)(B)(ii)
tracks that language. Thus, when reviewing the adequacy of a
complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), the court
applies the same standard as is applied under Rule 12(b)(6).
See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012) (“The standard for determining whether a
plaintiff has failed to state a claim upon which relief can
be granted under § 1915(e)(2)(B)(ii) is the same as the
Federal Rule of Civil Procedure 12(b)(6) standard for failure
to state a claim.”). 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, construe the pleadings in the
light most favorable to the plaintiff, and resolve all doubts
in the plaintiff's favor. Jenkins v. McKeithen,
395 U.S. 411, 421 (1969) (citations omitted). Allegations in
pro se complaints are “held to less stringent standards
than formal pleadings drafted by lawyers[.]” Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks
and citation omitted).
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 & 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).
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); O'Loughlin v. Doe, 920
F.2d 614, 616 (9th Cir. 1990).
brings this action against the following defendants: State of
Nevada, County of Lyon, Department of Public Safety, Nevada
Highway Patrol, Dennis Osborn, Harold L. Hughes, Chase E.
Walden, Erik J. Kusmerz, Nathan R. Champa, Alvin H. McNeil,
Jr., Abel Ortiz, Jr., Edwin R. Kilgore, Stephe B. Rye,
Matthew K. Merrill, Michael S. Fletcher, April J. Neiswonger,
Cary R. Smith, Diana N. Cooper, Shanleigh A. Brethauer,
Gregory J. Flores, Susan Derisa, and Doe Deputies 1, 2, 3.
(ECF No. 1-1 at 1.) The Complaint contains five causes of
action, with causes of action one, two, four and five labeled
“trespass, ” and cause of action three labeled
“trespass on case.”
court will now review and screen each cause of action.
First Cause of Action for Trespass
claims she is not a U.S. citizen, but a “non-citizen
national of the united States of America, a people on the
land.” (ECF No. 1-1 at 3 ¶ 9.) She contends that
on October 19, 2016, she was returning home from a job
interview in Carson City, traveling along U.S. Highway 50 and
noticed a Nevada Highway Patrol vehicle gaining.
(Id. ¶ 13.) Her cruise control was set to the
posted speed. (Id.) The trooper, Walden, paced
Plaintiff for a while, sped ahead, and then waited at a
junction further ahead. (Id.) After Plaintiff turned
at the junction, Walden began to follow her and initiated a
traffic stop at approximately 4:30 p.m. (Id.)
Plaintiff avers that “[a]s a means to readily
differentiate [her] status as a ‘traveler'
operating a private ‘automobile' and not a
‘driver' of a ‘motor vehicle', ...