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Thuna v. Kohn

United States District Court, D. Nevada

October 23, 2017

BARREN MAR THUNA, Plaintiff,
v.
PHILLIP J. KOHN, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC NO. 4), COMPLAINT (EFC NO. 1-1), AND MOTION TO AMEND COMPLAINT (ECF NO. 3)

          CAM FERENBACH, UNITED STATES MAGISTRATE JUDGE.

         Before the Court are Plaintiff Barren Thuna's application to proceed in forma pauperis (ECF No. 4), complaint (ECF No. 1-1), and motion to amend complaint (ECF No. 3). For the reasons stated below, Plaintiff's in forma pauperis application is granted. The Court grants Plaintiff's motion to amend and orders that the complaint be allowed to proceed. The Court also recommends that portions of Plaintiff's complaint be dismissed with 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. Whether 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 is incarcerated and does not receive money from any outside source except for some money from his family. (ECF No. 4). Plaintiff's application to proceed in forma pauperis is, therefore, granted.

         II. Whether Plaintiff's Complaint States a Plausible Claim

         A. Plaintiff's Motion to Amend

         Under Fed.R.Civ.P. 15(a)(1), “[a] party may amend its pleading once as a matter of course within 21 days after serving it.” Plaintiff's complaint has yet to be filed or served in this case, so Plaintiff may amend his pleading as a matter of course. Therefore, Plaintiff's motion to amend is granted.

         B. 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 ยง 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 ...


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