United States District Court, D. Nevada
Hoffman, Jr., United States Magistrate Judge
before the court is plaintiff Terrell Deshon Kemp Sr.'s
application to proceed in forma pauperis (ECF No.
1), filed on May 22, 2017. Also before the court is
Kemp's civil rights complaint filed under 42 U.S.C.
§ 1983. (Compl. (ECF No. 1-1).) Plaintiff is a pro se
inmate in the custody of the Clark County Detention Center.
IN FORMA PAUPERIS APPLICATION
submitted the declaration required by 28 U.S.C. §1915(a)
showing an inability to prepay fees and costs or to give
security for them. Based on the information regarding
Kemp's financial status, the court finds he is unable to
pay an initial installment toward the full filing fee
required under 28 U.S.C. § 1915(b). However, Kemp will
be required to make installment payments toward the full
$350.00 filing fee when he has funds available. Kemp's
request to proceed in forma pauperis therefore will
courts must conduct a preliminary screening in any civil case
“in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 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. Id.
§ 1915A(b)(1), (2). In addition to the screening
requirements under § 1915A, under the Prison Litigation
Reform Act, the court must dismiss the case if “the
allegation of poverty is untrue” or if the court
determines 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.” Id. § 1915(e)(2).
for failure to state a claim under § 1915A incorporates
the standard for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). Nordstrom v. Ryan, 762
F.3d 903, 908 (9th Cir. 2014). To survive § 1915A
review, a complaint must “contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The
court liberally construes pro se civil rights complaints and
may only dismiss them “if it appears beyond doubt that
the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Id.
(quoting Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although 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, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave to amend
the complaint with notice regarding the complaint's
deficiencies. Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995).
evaluating a complaint under Rule 12(b)(6), a court also
reviews compliance with Rule 8. See Twombly, 550
U.S. at 555-63. Illegible allegations do not satisfy Rule
8(a), which requires a complaint to contain a
“short” and “plain” statement of the
claim. See, e.g., Shuster v. Oppelman, 962 F.Supp.
394, 396 (S.D.N.Y. 1997) (stating that a partially illegible
pro se complaint does not comply with Rule 8); Knutson v.
Lucky Store, Inc., No. CIV S-07-0981-LKK-EFB-P, 2008 WL
4167076, at *1 (E.D. Cal. Sept. 5, 2008) (dismissing a pro se
complaint that was mostly illegible and did not comply with
Kemp brings a civil rights complaint under 42 U.S.C. §
1983, alleging claims against defendants Sheriff Joe
Lombardo, City of Las Vegas Metro Police Department, Sergeant
T. Garcia, Officer Cordero, and County Commissioners related
to injuries Kemp sustained during an arrest. (Compl. (ECF No.
1-1).) Although Kemp's handwriting is clear on some
pages, it is so faint on other pages that it is impossible
for the court to decipher all of his allegations. For
instance, the court cannot decipher Kemp's allegations on
page four of the complaint in the sections in which Kemp
alleges how the County Commissioners were acting under the
color of law and in the section titled “nature of the
case.” Given the difficulty in reading portions of the
complaint, the court is unable to determine exactly what
claims Kemp is attempting to allege against which defendants
and cannot evaluate whether Kemp states claims for relief.
Thus, even liberally construing the complaint in Kemp's
favor, it fails to state a claim upon which relief can be
granted. The court therefore will dismiss the complaint
without prejudice for Kemp to file an amended complaint.
chooses to file an amended complaint, it must be clearly
printed or typed. To the extent Kemp is attempting to bring a
claim under 42 U.S.C. § 1983, Kemp must allege facts
indicating that: (1) a right secured by the Constitution or
laws of the United States was violated, and (2) the alleged
violation was committed by a person acting under color of
state law. See West v. Atkins, 487 U.S. 42, 48
(1988). Kemp must ascribe particular conduct to particular
defendants. All defendants must be identified in the caption
of the pleading and all defendants must be named in the
section of the amended complaint designated for that purpose.
Although the Federal Rules of Civil Procedure adopt a
flexible pleading standard, Kemp still must give the
defendants fair notice of his claims against them and of his
entitlement to relief.
Kemp is advised that if he files an amended complaint, the
original complaint no longer serves any function in this
case. As such, if Kemp files an amended complaint, it must be
complete in and of itself without reference to prior
pleadings or other documents. The court cannot refer to a
prior pleading or other documents to make Kemp's amended
the court will deny without prejudice all other pending
motions in the case. The court cannot determine its
jurisdiction in this matter or evaluate these motions until
it determines which claims and parties are at issue in this
case. Kemp is advised that if he chooses to amend his
complaint, he should refrain from filing motions, such as
discovery motions and other procedural motions, until the
court re-screens his amended complaint and determines whether
the case will proceed. The court will order service of
process on the defendants if and when it is time to do so.