United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and LR IB 1-4. Before the court is
Stanley Kuzmicki's ("plaintiff) application to
proceed in forma pauperis (ECF No. 1) and pro
se complaint (ECF No. 1-1). Having reviewed the record,
the court recommends that plaintiffs application to proceed
in forma pauperis be granted, and that the complaint
be dismissed as detailed below.
IN FORMA PA UPERIS APPLICATION
forth in 28 U.S.C. § 1915(a), the court may authorize a
plaintiff to proceed in forma pauperis if he or she
is unable to pay the prescribed court fees. The plaintiff
need not "be absolutely destitute to enjoy the benefits
of the statute." Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339 (1948). Rather, "[a]n
affidavit in support of an IFP application is sufficient
where it alleges that the affiant cannot pay the court costs
and still afford the necessities of life." Escobedo
v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). He
states that his sole source of income derives from monthly
disability payments, and that his only asset is an
automobile. (ECF No. 1 at 1-2.) Though he does not list any
expenses, requiring plaintiff to pay the $400.00 filing fee
would surely impose a significant burden on his ability to
pay for food, board, and other necessities of life. Based on
the foregoing, the court finds that plaintiff is unable to
pay the filing fee in this matter. Accordingly, the court
recommends that plaintiffs application to proceed in
forma pauperis be granted.
to proceed in forma pauperis are governed by 28
U.S.C. § 1915. Section 1915 provides, in relevant part,
that "the 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). Dismissal 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
the court applies the same standard under section 1915 when
reviewing the adequacy of a complaint. See Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
Rule 12(b)(6), the court must dismiss the complaint if it
fails to "state a claim for relief that is plausible on
its face." BellAtl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Courts accept as true all well-pled factual
allegations, set aside legal conclusions, and verify that the
factual allegations state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Although the complaint need not contain detailed factual
allegations, it must offer more than "a formulaic
recitation of the elements of a cause of action" and
"raise a right to relief above a speculative
level." Twombly, 550 U.S. at 555.
complaint is construed in a light most favorable to the
plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral
Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court takes
particular care when reviewing the pleadings of a pro
se party, for a more forgiving standard applies to
litigants not represented by counsel. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a
liberal construction may not be used to supply an essential
element of the claim not initially pled. Pena v.
Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If dismissal
is appropriate, a pro se plaintiff must be given
some notice of the deficiencies of his or her complaint, and
leave to amend, unless the opportunity to amend would be
futile. Cato v. United States, 70 F.3d 1103, 1106
(9th Cir. 1995). Despite this leniency, a district court may
in its discretion dismiss an in forma pauperis
complaint if the claim "lacks an arguable basis in
either law or fact." Id. This includes claims
based on untenable legal conclusions (e.g., claims against
defendants who are immune from suit) or fanciful factual
allegations. See Franklin v. Murphy, 745 F.2d 1221,
1228-29 (9th Cir. 1984).
brings this action, pursuant to 42 U.S.C. § 1983,
against defendants Samantha Hanrahan ("S.
Hanrahan"), David Hanrahan ("D. Hanrahan"),
Warren R. Westad (Westad), Sergeant Shelly
("Shelly") and Brandon Gardner
("Gardner"). (ECF No. 1-1 at 2, 3.) Plaintiffs
complaint is a single, continuous paragraph, and it does not
identify the legal claims he is bringing. From what the court
can discern, plaintiff alleges generally that S. Hanrahan, D.
Hanrahan, and Westad improperly evicted plaintiff, and that
Shelly and Gardner unlawfully obstructed plaintiffs access to
the criminal justice system. Because of the complaint's
lack of structure, the court will provide its analysis in
three parts, first analyzing plaintiffs claims against
Gardner, then his claims against Shelly, and, finally, his
claims against S. Hanrahan, D. Hanrahan, and Westad.
Gardner is Entitled to Absolute Immunity
dispute with Gardner, a Churchill County Deputy District
Attorney, appears to involve official memoranda in which
Gardner denies plaintiffs request to file a criminal
complaint against S. Hanrahan, D. Hanrahan, and Westad. (ECF
No. 1-1 at 15.) Plaintiff alleges that Gardner also defamed
plaintiff by referring to him as "Defendant" in the
memoranda. (Id. at 16.) However, absolute immunity
protects those activities undertaken by a prosecutor in his
or her function as an advocate that are "intimately
associated with the judicial phase of the process."
Imbler v. Packman, 424 U.S. 409, 418-419, 424
(1976). Drafting and sharing memoranda regarding
"whether and when to prosecute" a potential crime
clearly falls into the category of protected activity.
Id. at 431 n.33. Thus, plaintiffs claims against
Gardner should be dismissed with prejudice because Gardner is
entitled to absolute immunity from civil liability and
amendment would be futile. 28 U.S.C. 1915(e)(2)(B)(iii);
see Cato, 70 F.3d at 1106.
Plaintiff Fails to State a Claim Against Shelly Upon Which
Relief Can Be Granted
further alleges that in August 2013, Shelly, a police
sergeant, refused to allow plaintiff to file a criminal
complaint against an unidentified person who called plaintiff
a "prick." (ECF No. 1-1 at 12.) Despite this
accusation, plaintiff admits that Shelly listened to
plaintiffs grievance. (Id.) After plaintiff demanded
that Shelly charge the person with verbal assault, Shelly
notified plaintiff that such a charge was not viable.
(Id.) In July 2015, Shelly again refused to file a
criminal complaint, this time against S. Hanrahan and D.
Hanrahan for forgery and fraud. (Id. at 13.)
However, plaintiff admits that he complained to Shelly
several times about S. Hawaiian's and D. Hawaiian's
alleged crimes, leading Shelly to inform plaintiff that his
dispute was a "civil matter" for which he should
retain a lawyer or seek redress in small claims court.
(Id. at 13). Plaintiff further admits that in August
2015, he went to the police station to pick up "reports
in this case, " that the police secretary gave him
multiple police reports regarding his grievances, and that
Shelly authored at least one of these reports. (Id.
at 13, 14.) Even so, plaintiff maintains that Shelly's
conduct constitute a violation of his civil rights.
(Id. at 14.)
to proceed in forma pauperis are governed by 28
U.S.C. 1915(e), which requires the court to dismiss the
complaint if it fails to "state a claim on which relief
can be granted." 28 U.S.C. 1915(e)(2)(B)(ii) (2012). A
complaint is properly dismissed when the claim for relief is
not "plausible on its face." Twombly, 550
U.S. at 570; Resnick, 213 F.3d at 447. A complaint
will also fail to state a claim where it does not contain
"a demand for the relief sought.. .." Fed.R.Civ.P.
8(a)(3); Alvarez v. Hill,518 F.3d 1152, 1159 (9th
Cir. 2008) (Federal Rule of Civil Procedure 8(a) applies to
complaint brought in forma pauperis). In making this
determination, courts accept as true all ...