Alvarado v. United States Government

          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 Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) and a Complaint (Doc. 1).

         I. DISCUSSION

         A. Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2)

         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 to proceed without prepaying fees or costs, 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, and his motion 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).

         In order to state a claim for relief, the Federal Rules of Civil Procedure require that a complaint must include: (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.” Fed.R.Civ.P. 8(a). The short and plain statement for relief “need not contain detailed factual allegations; rather, it must plead ‘enough facts to state a claim to relief that is plausible on its face.'” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “conclusory allegations of law and unwarranted inferences are not sufficient, ” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).

         Further, “[e]ach allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). See also Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”). Where a complaint contains the factual elements of a cause, but those elements are scattered throughout the complaint without any meaningful organization, the complaint does not set forth a “short and plain statement of the claim” for purposes of Rule 8. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988). Thus, 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).

         C. Plaintiff's ...