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Smith v. Las Vegas Metropolitan Police Department

United States District Court, D. Nevada

October 4, 2017

MARTY SMITH, Plaintiff,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al., Defendants.

          ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NOS. 1, 1-1) AND COMPLAINT (EFC NO. 1-2)

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE.

         Before the Court are Plaintiff Marty Smith's application to proceed in forma pauperis (ECF Nos. 1, 1-1) and complaint (ECF No. 1-2). For the reasons stated below, Plaintiff's in forma pauperis application is granted. The Court, however, orders that Plaintiff's complaint be dismissed without prejudice.

         Discussion

         Plaintiff's filings present two questions: (1) whether Plaintiff may proceed in forma pauperis under 28 U.S.C. § 1915(e) and (2) whether Plaintiff's complaint states a plausible claim for relief. Each is discussed below.

         I. Plaintiff May Proceed In Forma Pauperis

         Plaintiff's 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 Plaintiff's affidavit, he expects to receive $221 per month from the Department of Social Services. (ECF No. 1-1). Plaintiff has monthly transportation expenses of $50 dollars and a $658.75 deb to Allied Interstate. (Id.) Plaintiff's application to proceed in forma pauperis is, therefore, granted.

         II. Plaintiff's Complaint Fails to State a Plausible Claim

         A. Legal Standard for Reviewing the Complaint

         Because the Court grants Plaintiff's application to proceed in forma pauperis, it must review Plaintiff's 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.

         First, 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).

         Second, 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. 8(a)(2)).

         “[A] 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).

         B. Analysis

         Plaintiff's complaint alleges that on February 8, September 5, and September 13, 2015, officers of the Las Vegas Metropolitan department harassed Plaintiff in the Paradise, Sunrise manor, and Winchester areas of Las Vegas. (ECF No. 1-2 at 3-5). Plaintiff does not state what the alleged harassment consisted of beyond “offensive behavior” and “repeated misconduct.” (Id.). Plaintiff asserts he has suffered “interference with working and living, ” an “undue restraint placed on [his] immunity, “disturbances, annoy[ance]s, grief, and anguish, ” and “mental suffering and emotional ...


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