United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
the Court is Plaintiff Richard Powell's
(“Powell”), original and amended application to
proceed in forma pauperis (ECF Nos. 1, 8), his
pro se civil rights complaint (ECF No. 1-1), his
motions for subpoenas (ECF Nos. 1-2, 9), and his motion for
transcript (ECF No. 6). For the reasons stated below, the
Court recommends that Powell's original in forma
pauperis application (ECF No. 1) be denied as moot, that
the amended in forma pauperis application (ECF No.
8) be granted, that his complaint (ECF No. 1-1) be dismissed
with prejudice, and that the motions for subpoenas and motion
for transcript (ECF Nos. 1-2, 6, 9) be denied as moot, in
light of this Report and Recommendation.
IN FORMA PAUPERIS APPLICATION
person may be granted permission to proceed in forma
pauperis (“IFP”) if the person
“submits an affidavit that includes a statement of all
assets such [person] possesses [and] that the person is
unable pay such fees or give security therefore. 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 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 affidavit [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).
review of the application to proceed IFP reveals Powell
cannot pay the filing fee; therefore, the Court recommends
that the application (ECF No. 8) be granted. Powell's
first filed application (ECF No. 1) should be denied as moot.
to ordering service on any defendant, the Court is required
to screen an in forma pauperis complaint to
determine whether dismissal is appropriate under certain
circumstances. See Lopez, 203 F.3d at 1126 (noting
the in forma pauperis statute at 28 U.S.C. §
1915(e)(2) requires a district court to dismiss an in
forma pauperis complaint for the enumerated reasons).
Such screening is required before a litigation proceeding
in forma pauperis may proceed to serve a pleading.
Glick v. Edwards, 803 F.3d 505, 507 (9th Cir. 2015).
court shall dismiss the case at any time if the court
determines that - (A) the allegations of poverty is untrue;
or (B) the action or appeal - (i) is frivolous or malicious;
(ii) fails to state a claim upon which relief may be granted;
or (ii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
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€(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 quotations marks and citation omitted).
complaint must contain more than a “formulaic
recitation of the elements of a cause of actions, ” 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,
dismissal should not be without leave to amend unless it is
clear from the face of the complaint 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).