United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE
before the court is Plaintiff Anthony Dewayne Bailey's
application to proceed in forma pauperis (ECF No.
5), filed on December 22, 2016. Also before the court is
Plaintiff's complaint. (ECF No. 1-1). Plaintiff is a pro
se inmate in the custody of High Desert State Prison in
Indian Springs, Nevada.
IN FORMA PAUPERIS APPLICATION
submitted the declaration required by 28 U.S.C. §1915(a)
showing an inability to prepay fees and costs or to give
security for them. Based on the information regarding
Plaintiff's financial status, the court finds Plaintiff
is unable to pay an initial installment toward the full
filing fee required under 28 U.S.C. § 1915(b). However,
Plaintiff will be required to make installment payments
toward the full $350.00 filing fee when he has funds
available. Plaintiff's request to proceed in forma
pauperis therefore will be granted.
Screening the Complaint
courts must conduct a preliminary screening in any civil case
“in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted, or seek monetary relief
from a defendant who is immune from such relief. Id.
§ 1915A(b)(1), (2). In addition to the screening
requirements under § 1915A, under the Prison Litigation
Reform Act, the court must dismiss the case if “the
allegation of poverty is untrue” or if the court
determines the action “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.” Id. § 1915(e)(2).
for failure to state a claim under § 1915A incorporates
the standard for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Nordstrom v. Ryan, 762
F.3d 903, 908 (9th Cir. 2014). To survive § 1915A
review, a complaint must “contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). The court liberally
construes pro se civil rights complaints and may only dismiss
them “if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” Id. (quoting
Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave to amend
the complaint with notice regarding the complaint's
deficiencies. Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995).
review, the court concludes that Plaintiff's complaint is
frivolous because it lacks an arguable basis in law and fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
finding of frivolousness is warranted where the facts alleged
are “clearly baseless.” Denton v.
Hernandez, 504 U.S. 25, 32 (1992); see also Ashcroft
v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1959 (2009). A court
must not dismiss a complaint simply because the set of facts
presented by the plaintiff appears to be unlikely; however, a
complaint must allege facts “to state a claim that is
plausible on its face.” Bell Atl. Com. v.
Twombly, 550 U.S. 544, 570 (2007).
Plaintiff purports to bring a felony criminal complaint on
behalf of himself and the United States of America, seeking a
criminal penalty of up to $10, 000 and 10 years incarceration
against Defendants. Plaintiff also seeks $7, 200, 000 from
Defendant, to be paid in “0.999 Fine Silver.”
Compl. at 13. Plaintiff's factual allegations supporting
these claims are incomprehensible, and he does not provide a
short and plain statement of his claim showing that he is
entitled to relief as required by FRCP 8(a)(2). Moreover,
Plaintiff cites no authority to allow him to bring a felony
criminal complaint, or to act on behalf of the United States.
Because the complaint does not set forth a plausible claim,
allegations of other facts would not cure it, and there would
be no purpose in allowing Plaintiff an opportunity to amend.
The Court therefore recommends the complaint be denied with
THEREFORE ORDERED that Plaintiff's Application for Leave
to Proceed In Forma Pauperis (ECF No. 5) is GRANTED.
Plaintiff will not be required to pay an initial installment
fee and is permitted to maintain this action to conclusion
without prepaying fees or costs or giving security for them.
However, under 28 U.S.C. § 1915(b), Plaintiff will be
required to make installment payments toward the full $350.00
filing fee when he has funds available. This order does not
extend to the issuance of subpoenas at government expense.
FURTHER ORDERED that under 28 U.S.C. § 1915(b), the
Corrections Corporation of America (“CCA”) must
pay to the Clerk of the United States District Court,
District of Nevada, 20% of the preceding month's deposits
to the account of Plaintiff David Bird, #48718-048, in the
months that the account exceeds $10.00, until the $350.00
filing fee has been paid for this case. The Clerk of Court
must send a copy of this order to the CCA Accounting
Supervisor, 2190 East Mesquite Avenue, Pahrump, Nevada,
FURTHER ORDERED that if this action is dismissed or is
otherwise unsuccessful, the full $350.00 filing fee is ...