United States District Court, D. Nevada
CHARLES N. BELSSNER, Plaintiff,
ONE NEVADA CREDIT UNION, Defendant.
REPORT & RECOMMENDATION
Ferenbach United States Magistrate Judge.
the Court are pro se Plaintiff Charles N.
Belssner's (“Mr. Belssner's”) application
to proceed in forma pauperis (ECF No. 1) and
complaint (ECF No. 1-1). For the reasons stated below, Mr.
Belssner's in forma pauperis application is
granted. The Court, however, recommends that Mr.
Belssner's complaint be dismissed with prejudice.
Belssner's filings present two questions: (1) whether Mr.
Belssner may proceed in forma pauperis under 28
U.S.C. § 1915(e); and (2) whether Mr. Belssner's
complaint states a plausible claim for relief. Each is
Mr. Belssner May Proceed In Forma Pauperis
Belssner's application to proceed in forma
pauperis is granted. Under 28 U.S.C. § 1915(a)(1),
a plaintiff may bring a civil action “without
prepayment of fees or security thereof” if the
plaintiff submits a financial affidavit that demonstrates the
plaintiff “is unable to pay such fees or give security
therefor.” Under § 1915(a)(1), Mr. Belssner
submitted a financial affidavit. (See ECF No. 1 at
1). According to the affidavit, Mr. Belssner brings in no
income and has a minimal checking account balance. Mr.
Belssner's application lists significant expenses.
(See ECF No. 1 at 2). Mr. Belssner's application
to proceed in forma pauperis is, therefore, granted.
Mr. Belssner's Complaint Fails to State a Plausible
the Court grants Mr. Belssner's application to proceed
in forma pauperis, it must review Mr. Belssner's
complaint to determine whether the complaint is frivolous,
malicious, or fails to state a plausible claim. (See
28 U.S.C. § 1915(e)). The Court's review of Mr.
Belssner's complaint is guided by two legal standards:
Federal Rule of Civil Procedure 8 and the Supreme Court's
decision in Erickson v. Pardus, 551 U.S. 89 (2007).
Rule of Civil Procedure 8(a) 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.” (See Fed.R.Civ.P.
8(a)(2)). The Supreme Court's decision in Ashcroft v.
Iqbal, states that 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.” (See 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. at 679
(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.” (See Erickson, 551 U.S. at 94
(quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976))). If the 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)
Belssner brings the instant suit under 15 U.S.C. §§
45(a) and 53(b) against One Nevada Credit Union (“One
Nevada”) for allegedly deceptive and unfair practices
related to their mortgage services. Mr. Belssner's
complaint alleges that One Nevada is mortgage lender who
collaborated with Consumer Services of Nevada
(“Consumer Services”) to provide federally
protected mortgages under Fannie Mae guidelines. Mr. Belssner
alleges that he was a participant in this nonprofit program.
Mr. Belssner alleges that One Nevada, inter alia,
reneged on promises to reimburse him for various costs,
misled him on the status of his application, and misconstrued
or ignored evidence to disqualify and avoid providing him a
mortgage. Mr. Belssner asserts that he ...