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Milton v. Lombardo

United States District Court, D. Nevada

December 6, 2017

VAN MILTON, Plaintiff,
v.
JOSEPH LOMBARDO, et al., Defendants.

          ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (#3) AND SCREENING OF COMPLAINT (#1-1)

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Plaintiff's Application to Proceed in Forma Pauperis (ECF No. 3), filed on July 17, 2017.

         BACKGROUND

         Plaintiff brings this case pursuant to 42 U.S.C. § 1983. Plaintiff argues that Defendants used excessive force against him based on his race in violation of Plaintiff's rights to equal protection, due process and to be free from unreasonable seizures.

         DISCUSSION

         I. Application to Proceed In Forma Pauperis

         Plaintiff filed this instant action and attached a financial affidavit to his application and complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff's financial affidavit pursuant to 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result, Plaintiff's request to proceed in forma pauperis in federal court is granted.

         II. Screening the Complaint

         Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).

         In addition to the screening requirements under § 1915A, pursuant to the PLRA, a federal court must dismiss a prisoner's claims, “if the allegation of poverty is untrue, ” or if the action “is frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 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(e)(2) when reviewing the adequacy of a complaint or amended complaint.

         Review under Fed.R.Civ.P. 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all allegations of material fact stated in the complaint, and the Court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-1965 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., See Papasan v. Allain, 478 U.S. 265, 286 (1986).

         All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g. claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

         Plaintiff's complaint asserts claims for violations of his First, Fourth and Fourteenth Amendment rights. However, the entirety of Plaintiff's complaint states as follows:

Defendants utilized excessive force based on racial motivation in violation of plaintiff's right to due process, against unreasonable seizure of his person and to ...

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