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Saterstad v. State

United States District Court, D. Nevada

September 13, 2017

MARTIN SATERSTAD and RICHARD SATERSTAD, Plaintiffs,
v.
STATE OF NEVADA, et al., Defendants.

         Application to Proceed in Forma Pauperis (#1) and Screening of Complaint (#1-1)

          ORDER

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         Plaintiffs' 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.

         DISCUSSION

         I. Application to Proceed In Forma Pauperis

         The 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”).

         Here, 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).

         II. Screening the Complaint

         Federal 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).

         In 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.

         Review 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).

         All or 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 ...


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