United States District Court, D. Nevada
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC
NOS. 1, 1-1) AND COMPLAINT (EFC NO. 1-2)
FERENBACH UNITED STATES MAGISTRATE JUDGE.
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.
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.
Plaintiff 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
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.
Plaintiff's Complaint Fails to State a Plausible
Legal Standard for Reviewing the Complaint
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.
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).
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