United States District Court, D. Nevada
REPORT AND RECOMMENDATION
FOLEY, JR.United State Magistrate Judge.
to Proceed in Forma Pauperis (ECF No. 10) and
Screening of Complaint (ECF No. 1)
matter is before the Court on Plaintiff's Application for
Leave to Proceed in forma pauperis (ECF No. 10),
filed on August 25, 2016.
brings this action pursuant to 42 U.S.C. § 1983.
Plaintiff alleges that Defendant State of Nevada has violated
his civil rights by subjecting him to double jeopardy, loss
of wages, unjust and unconstitutional confinement, and cruel
and unusual punishment. Plaintiff alleges that the State of
Nevada violated his constitutional rights found in the double
jeopardy clause of the 5th Amendment, and the due process
clause of the 14th Amendment. Plaintiff seeks general and
Application to Proceed In Forma Pauperis
filed this instant action and attached a financial affidavit
to his application and complaint as required by 28 U.S.C.
§ 1915(a). Reviewing Plaintiff's financial affidavit
pursuant to 28 U.S.C. § 1915, the Court finds that
Plaintiff is unable to pre-pay the filing fee. As a result,
Plaintiff's request to proceed in forma pauperis in
federal court is granted.
Screening the Complaint
granting a request to proceed in forma pauperis, a
court must additionally screen a complaint pursuant to 28
U.S.C. § 1915(e). Specifically, federal courts are given
the authority to dismiss a case if the action is legally
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a party who is immune from such relief. 28 U.S.C. §
1915(e)(2). A complaint, or portion thereof, should be
dismissed for failure to state a claim upon which relief may
be granted “if it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claims
that would entitle him to relief.” Buckey v. Los
Angeles, 968 F.2d 791, 794 (9th Cir. 1992). A complaint
may be dismissed as frivolous if it is premised on a
nonexistent legal interest or delusional factual scenario.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
Moreover, “a finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are
judicially noticeable facts available to contradict
them.” Denton v. Hernandez, 504 U.S. 25, 33
(1992). When a 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).
12(b)(6) of the Federal Rules of Civil Procedure provides for
dismissal of a complaint for failure to state a claim upon
which relief can be granted. Review under Rule 12(b)(6) is
essentially a ruling on a question of law. See Chappel v.
Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir.
2000). A properly pled complaint must provide a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell
Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007).
Although Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) citing Papasan v.
Allain, 478 U.S. 265, 286 (1986). The court must accept
as true all well-pled factual allegations contained in the
complaint, but the same requirement does not apply to legal
conclusions. Iqbal, 129 S.Ct. At 1950. Mere recitals
of the elements of a cause of action, supported only by
conclusory allegations, do not suffice. Id. at 1949.
Secondly, where the claims in the complaint have not crossed
the line from plausible to conceivable, the complaint should
be dismissed. Twombly, 550 U.S. at 570.
Court shall liberally construe a complaint by a pro se
litigant. Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 2007). This is especially important for civil
rights complaints. Ferdik v. Bonzelet, 963 F.2d
1258, 1261 (9th Cir. 1992). However, a liberal construction
may not be used to supply an essential element of the claim
absent from the complaint. Bruns v. Nat'l Credit
Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) quoting
Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
alleges that Defendant's actions surrounding his arrest
and imprisonment for lifetime supervision violations after he
had already served a 48 to 144 month sentence constitute
cruel and unusual punishment as well as unjust and
unconstitutional confinement under the 5th Amendment to the
United States Constitution. Plaintiff further ...