United States District Court, D. Nevada
William G. Cobb United States Magistrate Judge
has filed an application to proceed in forma pauperis (IFP)
(ECF No. 1) and has now filed his third amended complaint
(ECF No. 7).
APPLICATION TO PROCEED IFP
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).
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) (quotation marks and citation omitted). 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).
Plaintiff originally submitted this action for filing, he
included an application to proceed in forma pauperis for an
inmate. (ECF No. 1.) An inmate is required to submit a
financial certificate from the institution where he is
confined that sets forth his average monthly account balance
and deposits for the past six months. Plaintiff did so, but
it was not signed by any authorized officer on behalf of the
institution. Plaintiff then filed an amended complaint, which
the court directed Plaintiff to file a new amended complaint
because the amended complaint was too light to be legible.
Plaintiff filed a second amended complaint on March 20, 2019,
and then a third amended complaint (TAC) on April 1, 2019.
Since that time, he has changed addresses twice, and it now
appears he is out of custody. (See ECF No. 9.)
the Clerk shall send Plaintiff the instructions and form for
an application to proceed IFP for a non-inmate, and Plaintiff
shall complete and file that form within 30 days.
plaintiffs proceeding IFP, the court is required to screen
the complaint under 28 U.S.C. § 1915(e)(2), which
requires dismissal of a case that is frivolous or malicious;
fails to state a claim upon which relief may be granted; or
seeks monetary relief against a defendant who is immune. 28
U.S.C. § 1915(e)(2)(A), (B)(i)-(iii).
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 28 U.S.C. § 1915(e)(2)(B)(ii)
tracks that language. As such, when reviewing the adequacy of
a complaint under this statute, the court applies the same
standard as is applied under Rule 12(b)(6). See e.g.
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)
(“The standard for determining whether a plaintiff has
failed to state a claim upon which relief can be granted
under § 1915(e)(2)(B)(ii) is the same as the Federal
Rule of Civil Procedure 12(b)(6) standard for failure to
state a claim.”). Review under Rule 12(b)(6) is
essentially a ruling on a question of law. See Chappel v.
Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000)
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. (citation and quotation marks omitted). At a
minimum, a plaintiff should include “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,