United States District Court, D. Nevada
AUBREY C. AVERY, JR., Plaintiff,
M. DONOVAN, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
to Proceed in Forma Pauperis (#1) and Screening of
matter comes before the Court on Plaintiff's Application
to Proceed in Forma Pauperis (ECF No. 1), filed on
July 25, 2016.
brings this case pursuant to 42 U.S.C. § 1983. Plaintiff
argues that Defendant M. Donovan used excessive force against
him on December 31, 2014 when Defendant struck Plaintiff in
the face with a closed fist while Plaintiff was allegedly on
his hands and knees. Plaintiff asserts that he still suffers
from the injuries caused by this incident every day and now
seeks punitive damages.
.Application to Proceed In Forma Pauperis
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.
Screening the Complaint
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).
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.
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).
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).