United States District Court, D. Arizona
Bernardo P. Velasco United States Magistrate Judge
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.
Application to Proceed In Forma Pauperis
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.
Screening the Complaint
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
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
(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,
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
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
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 ...