United States District Court, D. Nevada
to Proceed in Forma Pauperis (#1) and Screening of
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiffs' Application
to Proceed in Forma Pauperis (ECF No. 1), filed on
July 18, 2016. Also before the Court are Plaintiff's
Applications to Proceed in Forma Pauperis (ECF Nos.
2 and 3), filed September 6, 2016.
complaint is brought pursuant to 42 U.S.C. § 1983.
Plaintiffs allege that officers with the Las Vegas
Metropolitan Police Department performed an illegal search
and seizure of their residence on October 15, 2009 in
violation of the Fourth Amendment. Officers arrived at
Plaintiffs residence after Plaintiffs called 911 following an
alleged armed robbery. Plaintiffs assert that rather than
treat Plaintiffs like the victims they were, the police
arrested Plaintiffs for murder and then conducted an illegal
search of Plaintiffs' residence to gain access to the
“Medicinal Marijuana grow” that Plaintiff,
Richard Saterstad, had in his room. Plaintiffs argue that
their rights have been continually violated since that time
and they now seek compensatory damages.
Application to Proceed In Forma Pauperis
Ninth Circuit has recognized that “there is no formula
set forth by statute, regulation, or case law to determine
when someone is poor enough to earn IFP status.”
Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir.
2015). An applicant need not be absolutely destitute to
qualify for a waiver of costs and fees; nonetheless, he must
demonstrate that because of his poverty he cannot pay those
costs and still provide himself with the necessities of life.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 339 (1948). The applicant's affidavit must state the
facts regarding the individual's poverty “with some
particularity, definiteness and certainty.” United
States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)
(quoting Jefferson v. United States, 277 F.2d 723,
725 (9th Cir. 1960)). It is within the discretion of the
court to deny a request to proceed in forma pauperis
if an individual is unable or unwilling to verify his or her
poverty and the court determines that the individual's
allegation of poverty is untrue. 28 U.S.C. § 1915(e)(2);
see, e.g., Martin v. Hahn, 271 F. App'x 578 (9th
Cir. 2008) (finding that the district court did not abuse its
discretion by denying the plaintiff's request to proceed
in forma pauperis because he “failed to verify
his poverty adequately”).
Plaintiffs have requested to proceed in this case in
forma pauperis and have submitted affidavits detailing
their inability to prepay the fees and costs associated with
bringing this action or give security for them. However,
Plaintiff's failed to submit an application on the
Court's approved form. See Local Rule of Special
Proceedings (LSR) 1-1 (“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.”). Without this
information, the Court is unable to verify Plaintiffs'
poverty allegations and determine whether Plaintiffs are
eligible to proceed in forma pauperis. Therefore,
the Court will deny Plaintiffs' applications without
prejudice and instruct the Clerk of the Court to mail
Plaintiffs a copy of the long form application (AO 239).
Screening the Complaint
courts must conduct a preliminary screening in any case in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity. See 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. See 28
U.S.C. § 1915A(b)(1), (2).
addition to the screening requirements under § 1915A,
pursuant to the PLRA, a federal court must dismiss a
prisoner's claims, “if the allegation of poverty is
untrue, ” or if 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.” 28 U.S.C. § 1915(e)(2). 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(e)(2) when reviewing the adequacy of a complaint
or amended complaint.
under Fed.R.Civ.P. 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). Dismissal
for failure to state a claim is proper only if it is clear
that the plaintiff cannot prove any set of facts in support
of the claim that would entitle him or her to relief. See
Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In
making this determination, the Court takes as true all
allegations of material fact stated in the complaint, and the
Court construes them in the light most favorable to the
plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955,
957 (9th Cir. 1996). Allegations in a pro se
complaint are held to less stringent standards than formal
pleadings drafted by lawyers. See Hughes v. Rowe,
449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (per curiam). While 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, 127
S.Ct. 1955, 1964-1965 (2007). A formulaic recitation of the
elements of a cause of action is insufficient. Id., See
Papasan v. Allain, 478 U.S. 265, 286 (1986).
part of a complaint filed by a prisoner may therefore be
dismissed sua sponte if the prisoner's claims
lack an arguable basis either in law or in fact. This
includes claims based on legal conclusions that are untenable
(e.g. claims against defendants who are immune from
suit or claims of infringement of a legal interest which
clearly does not exist), as well as claims based on fanciful
factual allegations (e.g. fantastic or delusional