United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and LR IB 1-4. Before the court is Terria
McKnight's ("plaintiff') application to proceed
in forma pauperis (ECF No. 1) and pro se
complaint (ECF No. 1-1). Having reviewed the record, the
court recommends that plaintiffs application to proceed
in forma pauperis be granted, and that the complaint
be dismissed with prejudice.
IN FORMA PAUPERIS APPLICATION
forth in 28 U.S.C. § 1915(a), the court may authorize a
plaintiff to proceed in forma pauperis if he or she
is unable to pay the prescribed court fees. The plaintiff
need not "be absolutely destitute to enjoy the benefits
of the statute." Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339 (1948). Rather, "[a]n
affidavit in support of an IFP application is sufficient
where it alleges that the affiant cannot pay the court costs
and still afford the necessities of life." Escobedo
v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In
her application, plaintiff indicates that her monthly income
is $126 after expenses. (ECF No. 1 at 2.) Requiring plaintiff
to pay the $400.00 filing fee would surely impose a
significant burden on her ability to pay for food, board, and
other necessities of life. Based on the foregoing, the court
finds that plaintiff is unable to pay the filing fee in this
matter. Accordingly, the court recommends that plaintiffs
application to proceed in forma pauperis be granted.
to proceed in forma pauperis are governed by 28
U.S.C. § 1915. Section 1915 provides, in relevant part,
that "the court shall dismiss the case at any time if
the court determines that... the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim upon
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief." 28
U.S.C. § 1915(e)(2)(B). Dismissal of a complaint for
failure to state a claim upon which relief may be granted is
provided for in Federal Rule of Civil Procedure 12(b)(6), and
the court applies the same standard under section 1915 when
reviewing the adequacy of a complaint. See Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
Rule 12(b)(6), the court must dismiss the complaint if it
fails to "state a claim for relief that is plausible on
its face." BellAtl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Courts accept as true all well-pled factual
allegations, set aside legal conclusions, and verify that the
factual allegations state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Although the complaint need not contain detailed factual
allegations, it must offer more than "a formulaic
recitation of the elements of a cause of action" and
"raise a right to relief above a speculative
level." Twombly, 550 U.S. at 555.
complaint is construed in a light most favorable to the
plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral
Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court takes
particular care when reviewing the pleadings of a pro
se party, for a more forgiving standard applies to
litigants not represented by counsel. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a
liberal construction may not be used to supply an essential
element of the claim not initially pled. Pena v.
Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If dismissal
is appropriate, a pro se plaintiff must be given
some notice of the deficiencies of his or her complaint, and
leave to amend, unless the opportunity to amend would be
futile. Cato v. United States, 70 F.3d 1103, 1106
(9th Cir. 1995). Despite this leniency, a district court may
in its discretion dismiss an in forma pauperis
complaint if the claim "lacks an arguable basis in
either law or fact." Id. This includes claims
based on untenable legal conclusions (e.g., claims against
defendants who are immune from suit) or fanciful factual
allegations. See Franklin v. Murphy, 745 F.2d 1221,
1228-29 (9th Cir. 1984).
brings this action against the Nevada Department of Health
and Human Services Division of Welfare and Supportive
Services ("DWSS") and the DWSS Administrative
Adjudication Office ("AAO"). (ECFNo. 1-1 at 1.)
to the complaint, plaintiff is a person with disabilities.
(Id. at 2.) She resides in Lyon County, Nevada with
her son who is diagnosed with autism; they both receive
Social Security disability benefits. (Id.) On March
22, 2017, plaintiff submitted a redetermination application
for Supplemental Nutrition Assistance Program
('SNAP") benefits. (Id.) The DWSS Yerington
Office interviewed plaintiff concerning her application.
(Id. at 3.) While "inputting expenses into the
computer to be calculated, " an interviewer refused to
accept plaintiffs evidence of her medical and shelter
expenses. (Id.) On March 29, 2017, DWSS sent
plaintiff an "Insufficient Information Request, "
which disregarded plaintiffs claimed shelter expenses.
(Id.) This document was "unclear in how the
conclusion was reached." (Id.)
filed an appeal on May 2, 2017 and a telephone hearing was
subsequently held on May 22, 2017. (Id.) During the
hearing, fifty-three pages of documents and exhibits were
faxed to plaintiff and "read very fast by the person on
the other line." (Id.) The faxed documents had
information "blackened out" and were generally
unreadable, due to an error in copying the original
documents. (Id.) Plaintiff notified the hearing
officers that she was confused and that she "did not
receive the documents early enough to go through them;"
elsewhere, plaintiff claims that the documents were not faxed
to her until over thirty minutes into the hearing. (Id;
Id. at 9-10.) A hearing officer replied that "this
is the way we always do this." (Id.) Plaintiff
"tried to say what issues [she] had" and stated
that she would wait for the hearing decision before taking
further action. (Id.)
sent plaintiff the hearing decision on July 10, 2017.
(Id.) The decision concluded that plaintiff was
responsible for heating and cooling costs but did not provide
an amount. (Id.) The decision also contained SNAP
eligibility calculations regarding her shelter expenses.
(Id.) On April 28, 2017, the hearing office upheld
the hearing decision. (Id. at 4.)
alleges that defendants' denial of plaintiffs application
for Supplemental Nutrition Assistance Program
("SNAP") benefits violated her constitutional and
federal statutory rights, enumerated in Counts 1 through VII.
(Id.) Plaintiff seeks declaratory and injunctive
relief, as well as ...