United States District Court, D. Nevada
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)
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
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
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.
Whether Plaintiff May Proceed In Forma
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.
Whether Plaintiff's Complaint States a Plausible
Plaintiff's Motion to Amend
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.
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 ...