United States District Court, D. Nevada
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC
NO. 1) AND COMPLAINT (EFC NO. 1-1)
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
the Court are pro se Plaintiffs S.L.S (a minor) and
Sonia I. Diaz de Smith's (S.L.S.'s parent and
guardian) application to proceed in forma pauperis
(ECF No. 1) and complaint (ECF No. 1-1). For the reasons
stated below, Plaintiffs' in forma pauperis
application is granted. The Court, however, orders that
Plaintiffs' complaint be dismissed without prejudice.
filings present two questions: (1) whether Plaintiffs may
proceed in forma pauperis under 28 U.S.C. §
1915(e) and (2) whether Plaintiffs' complaint states a
plausible claim for relief. Each is discussed below.
Plaintiffs May Proceed In Forma Pauperis
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." According to Plaintiffs'
affidavit, Diaz de Smith, "parent and general
guardian" of her minor co-Plaintiff, makes $1, 500 from
her employment and receives $300 in child support each month.
(ECF No. 1 at 1). She reports $1, 800 in monthly expenses as
well as a financial obligation related to a student loan.
(Id. at 1). Plaintiffs' application to proceed
in forma pauperis is, therefore, granted.
Plaintiffs' Complaint Fails to State a Plausible
Legal Standard for Reviewing the Complaint
the Court grants Plaintiffs' application to proceed
in forma pauperis, it must review Plaintiffs'
complaint to determine whether the complaint is frivolous,
malicious, or fails to state a plausible claim. 28 U.S.C.
§ 1915(e)(2)(B). Federal 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." 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) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547, (2007)). The Court's
decisions in Twombly 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." Iqbal, 556 U.S. at 680. Factual
allegations are not entitled to the assumption of truth if
they are conclusory or "amount to nothing more than a
'formulaic recitation of the elements'" of a
claim. Id. at 681 (quoting Twombly, 550
U.S. at 555).
the Court must determine whether the complaint states a
"plausible" claim for relief. Iqbal, 556
U.S. 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. 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.
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (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. Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995).