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Flores v. Ashley

United States District Court, D. Arizona

June 2, 2017

Herman Gerard Flores, Plaintiff,
v.
Stephanie Ashley, et al., Defendants.

          ORDER

          Bernardo P. Velasco United States Magistrate Judge

         Pending before the Court is Plaintiffs pro se Application to Proceed In Forma Pauperis and affidavit in support thereof (Doc. 2) accompanied by his pro se Complaint (Doc. 1). In accordance with the provisions of 28 U.S.C. §636(c)(1), Plaintiff has consented to proceed before a United States Magistrate Judge to conduct any and all further proceedings in this case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 4). For the following reasons, the Court grants Plaintiffs Application to Proceed In Forma Pauperis and dismisses Plaintiffs Complaint with leave to amend.

         I. Application to Proceed In Forma Pauperis

         The Court may allow a plaintiff to proceed without prepayment of fees when it is shown by affidavit that he is "unable to pay such fees. . . ." 28 U.S.C. § 1915(a)(1); see also LRCiv 3.3, Rules of Practice of the U.S. District Court for the District of Arizona. Although a plaintiff need not be absolutely destitute to obtain the benefits of in forma pauperis status, the privilege is reserved for the truly impoverished litigant who would remain without legal remedy if such status was not granted. Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960). Whether to grant a request to proceed in forma pauperis is within the Court's discretion. Williams v. Field, 394 F.2d 329, 332 (9th Cir. 1968). Review of Plaintiffs Application reflects that Plaintiff satisfies the proof-of-indigence requirement of 28 U.S.C. § 1915(a)(1). Plaintiff is granted leave to proceed in forma pauperis.

         II. Screening the Complaint

         A. Standard

         Determination that a plaintiff is unable to pay the requisite costs and fees does not end the analysis. See 28 U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. §1915(e)(2)(B), the Court must dismiss any complaint filed in forma pauperis if the court determines that the complaint 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 from such relief. 28 U.S.C. §1915(e)(2)(B)(i)-(iii); see also Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("section 1915(e) applies to all in forma pauperis complaints[.]") Thus, the Court may grant leave to proceed in forma pauperis, allow the filing of the Complaint, and then determine pursuant to 28 U.S.C. § 1915(e)(2)(B) to dismiss the complaint prior to service of process. See Franklin v. Murphy, 745 F.2d 1221, 1226-1227 (9th Cir. 1984); see also Lopez, 203 F.3d at 1127 ("It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").

         Rule 8 of the Federal Rules of Civil Procedure governs whether a complaint sufficiently states a claim upon which relief may be granted. Under Rule 8, a complaint must state:

(1) a short and plain statement of the grounds for the court's jurisdiction...;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Fed.R.Civ.P. 8(a). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

         "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court do draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679

         Additionally, when the plaintiff is proceeding pro se, the complaint must be liberally construed in the interests of justice. See Haines v. Kerner,404 U.S. 519, 520 (1972) (pro se pleadings are held to "less stringent standards than formal pleadings drafted by lawyers..."); Hebbe v. Pliler,627 F.3d 338, 342 (9th Cir. 2010) (courts must "continue to construe pro se filings liberally...."); Johnson v. Reagan,524 F.2d 1123, 1124 (9th Cir. 1975)("Pleadings should be ...


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