United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
before the court is plaintiff Nithya Vinayagam application to
proceed in forma pauperis (ECF No. 4), filed on July
IN FORMA PAUPERIS APPLICATION
has submitted the declaration required by 28 U.S.C. §
1915(a) showing an inability to prepay fees and costs or give
security for them. Accordingly, Plaintiff's request to
proceed in forma pauperis will be granted.
granting a request to proceed in forma pauperis, a
court must screen the complaint under 28 U.S.C. §
1915(e)(2). In screening the complaint, a court must identify
cognizable claims and dismiss claims that are frivolous,
malicious, file to state a claim on which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
Dismissal for failure to state a claim under §
1915(e)(2) incorporates the standard for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). To survive § 1915 review, a complaint must
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). The court liberally construes pro se 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.”
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)
(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. Further, a Court may dismiss a
claim as factually frivolous if its allegations are
“clearly baseless, a category encompassing allegations
that are fanciful, fantastic, and delusional.”
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)
(internal citations and punctuation omitted). 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).
plaintiff's amended complaint (ECF No. 6) is a single
page and contains only the intended corrections he seeks to
make to his original complaint. Plaintiff's amended
complaint does not allege any facts related to the basis of
this lawsuit. Plaintiff is advised that court cannot refer to
a prior pleading or other documents to make plaintiff's
amended complaint complete. The amended complaint must be
complete in and of itself without reference to prior
pleadings or other documents. The court therefore will
dismiss plaintiff's complaint without prejudice for
plaintiff to file a second amended complaint.
plaintiff chooses to file an amended complaint, the document
must be titled “Second Amended Complaint.” The
second amended complaint must contain a short and plain
statement describing the underlying case, the defendant's
involvement in the case, and the approximate dates of its
involvement. See Fed. R. Civ. P. 8(a)(2). Although
the Federal Rules of Civil Procedure adopt a flexible
pleading standard, plaintiff still must give defendants fair
notice of her claims against them and her entitlement to
relief. Plaintiff is advised that if he files an amended
complaint, the first amended complaint (ECF No. 6) no longer
serves any function in this case. As stated above, the
amended complaint must be complete in and of itself without
reference to prior pleadings or other documents.
THEREFORE ORDERED that application to proceed in forma
pauperis (ECF No. 4) is GRANTED. Plaintiff will not be
required to pay the filing fee in this action. Plaintiff is
permitted to maintain this action to conclusion without the
necessity of prepayment of any additional fees or costs or
the giving of a security for fees or costs. This order
granting leave to proceed in forma pauperis does not
extend to the issuance of subpoenas at government expense.
FURTHER ORDERED that the first amended complaint (ECF No. 6)
is DISMISSED without prejudice for failure to state a claim
upon which relief can be granted, with leave to amend.
FURTHER ORDERED that plaintiff shall have until
August 19, 2019, to file an amended
complaint. Failure to file an amended complaint will result