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Holmes v. Nielson

United States District Court, D. Arizona

February 20, 2018

John Charles Holmes, Plaintiff,
v.
J. Nielson, et al., Defendants.

          THE HON. STEPHEN M. McNAMEE, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION AND ORDER

          Eileen S. Willett United States Magistrate Judge.

         Pending before the Court is pro se Plaintiff John Charles Holmes' Application for Deferral or Waiver of Court Fees or Costs and Consent to Entry of Judgment (Doc. 3)

         and a Complaint (Doc. 1). Plaintiff has agreed to Magistrate Judge Jurisdiction (Doc. 9).

         I. DISCUSSION

         A. Application for Deferral or Waiver of Court Fees or Costs and Consent to Entry of Judgment (Doc. 3)

         The district court may permit indigent litigants to proceed in forma pauperis upon completion of a proper affidavit of indigence. See 28 U.S.C. § 1915(a). In the Application for Deferral or Waiver of Fees or Costs (Doc. 3), Plaintiff has declared under penalty of perjury that he is unable to pay the filing fee and other costs associated with this case. Plaintiff presents financial information to support his application. Given Plaintiff's lack of income and the absence of any significant assets, Plaintiff has met his burden of proof. The Court finds the Plaintiff to be indigent, and his Application (Doc. 3) will be granted.

         B. Screening of In Forma Pauperis Complaint (Doc. 1)

         With respect to in forma pauperis proceedings, the Court shall dismiss such action at any time if it determines that:

(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2). See also Lopez v. Smith, 203 F.3d 1122, 1126 fnt. 7 (9th Cir. 2000) (stating that 28 U.S.C. § 1915(e) “applies to all in forma pauperis complaints”). The Court must dismiss an in forma pauperis complaint if it fails to state a claim or if it is frivolous or malicious. 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.”); Franklin v. Murphy, 745 F.2d 1221, 1226-27 (9th Cir. 1984). A complaint may be dismissed where it lacks a cognizable legal theory, lacks sufficient facts alleged under a cognizable legal theory, or contains allegations disclosing some absolute defense or bar to recovery. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); Weisbuch v. County of L.A., 119 F.3d 778, 783, n. 1 (9th Cir. 1997).

         But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less stringent standards than formal pleadings drafted by ...


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