United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
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 the Local Rules of Practice, LR 1B 1-4.
filed an application to proceed in forma pauperis (IFP), and
pro se civil rights complaint on July 10, 2017. (ECF Nos. 1,
1-1.) The undersigned issued an order denying Plaintiff's
IFP application because it indicated he had $22, 500 in cash
or in a checking or savings account, and minimal expenses,
but gave him thirty days to pay the filing fee. (ECF No. 3.)
Plaintiff did not do so. Instead, on February 2, 2018, he
filed a document that he titled a “Motion of Forma
Pauperis Application.” (ECF No. 4.) The document is not
an IFP application, but describes a scenario where Plaintiff
claims he received a notice that he received a sum of money
from the “UN Habitat.”
person may be granted permission to proceed IFP if the person
“submits an affidavit that includes a statement of all
assets such [person] possesses [and] that the person is
unable to pay such fees or give security therefor. Such
affidavit shall state the nature of the action, defense or
appeal and affiant's belief that the person is entitled
to redress.” 28 U.S.C. § 1915(a)(1); Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)
(stating that 28 U.S.C. § 1915 applies to all actions
filed IFP, not just prisoner actions).
addition, the Local Rules of Practice for the District of
Nevada provide: “Any person who is unable to prepay the
fees in a civil case may apply to the court for authority to
proceed [IFP]. The application must be made on the form
provided by the court and must include a financial affidavit
disclosing the applicant's income, assets, expenses, and
liabilities.” LSR 1-1.
supporting affidavits [must] state the facts as to [the]
affiant's poverty with some particularity, definiteness
and certainty.'” U.S. v. McQuade, 647 F.2d
938, 940 (9th Cir. 1981) (quoting Jefferson v. United
States, 277 F.2d 723, 725 (9th Cir. 1960)). A litigant
need not “be absolutely destitute to enjoy the benefits
of the statute.” Adkins v. E.I. Du Pont de Nemours
& Co., 335 U.S. 331, 339 (1948).
has not filed a completed IFP application containing the
required information allowing the court to make a
determination that he is impoverished and cannot pay the
under 28 U.S.C. § 1915, “[t]he 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)(i)-(iii). This provision applies to all actions
filed IFP, whether or not the plaintiff is incarcerated.
See Lopez, 203 F.3d at 1129; see also Calhoun v.
Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).
reviewing the complaint under this standard, the court must
accept as true the allegations, construe the pleadings in the
light most favorable to the plaintiff, and resolve all doubts
in the plaintiff's favor. Jenkins v. McKeithen,
395 U.S. 411, 421 (1969) (citations omitted). Allegations in
pro se complaints are “held to less stringent standards
than formal pleadings drafted by lawyers[.]” Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks
and citation omitted).
complaint must contain more than a “formulaic
recitation of the elements of a cause of action, ” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“The pleading must contain something more … than
… a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action.”
Id. (quoting 5 C. Wright & A. Miller, Federal
Practice & Procedure § 1216, at 235-36 (3d ed.
2004)). At a minimum, a plaintiff should state “enough
facts to state a claim to relief that is plausible on its
face.” Id. at 570; see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
dismissal should not be without leave to amend unless it is
clear from the face of the complaint that the action is
frivolous and could not be amended to state a federal claim,
or the district court lacks subject matter jurisdiction over
the action. See Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995); O'Loughlin v. Doe, 920
F.2d 614, 616 (9th Cir. 1990).
though Plaintiff has not filed a completed IFP application or
paid the filing fee, the court has undertaken a review of the
proposed civil rights complaint to determine whether
Plaintiff should be given additional time to pay the filing
fee and whether his action should be dismissed with or
without prejudice. The court finds that he should not be
given additional time to pay the filing fee, and that the
dismissal should be with prejudice.
complaint names the State of California and U.S. Naval
Officers Command at Pearl Harbor, Hawaii and in San Diego.
The complaint then contains vague and nonsensical statements
including mention of an alleged apprehension of him in his
home in Roseville in 1995, a Hawaii state court
administrator, and Jesus Christ.
complaint lacks an arguable basis in law or fact, and as such
is frivolous. See Neitzke v. Williams, 490 U.S. 319,
325 (1989) (this term “embraces not only the inarguable
legal conclusion, but also the fanciful factual