Moore v. Cop et al

Filing 5

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE: IT IS HEREBY ORDERED that P's 1 MOTION/APPLICATION for Leave to Proceed in forma pauperis is GRANTED. FURTHER ORD that the Clerk shall FILE P's Complaint. IT IS RECOMMENDED that the D istrict Court enter an order dismissing this action with prejudice and entering judgment accordingly. Objections to R&R due by 5/1/2009. Signed by Magistrate Judge Robert A. McQuaid, Jr on 4/15/2009. (Copies have been distributed pursuant to the NEF - KL)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RONALD MOORE, ) ) Plaintiff, ) ) vs. ) ) COP, et al., ) ) Defendants. ) ____________________________) 3:09-CV-0183-LRH (RAM) REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

This Report and Recommendation is made to the Honorable Larry R. Hicks, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4. On April 9, 2009, the court received Plaintiff's Complaint and Application to Proceed In Forma Pauperis (Doc. #1). On April 10, 2009, the court ordered Plaintiff to provide additional information concerning the Application to Proceed In Forma Pauperis (Doc. #3). On April 15, 2009, Plaintiff filed his Affidavicxt requested by the court (Doc. #4). From the information in the Application to Proceed In Forma Pauperis, it appears that Plaintiff qualifies for in forma pauperis status. That application will be granted, and the Complaint will be filed. Pursuant to 28 U.S.C. § 1915(e)(2), a federal court must dismiss a case in which in forma pauperis status is granted, "if the allegation of poverty is untrue," or the action "is frivolous or malicious," "fails to state a claim on 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). Dismissal of a complaint for failure to state a claim upon which relief may be granted is

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provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). All or part of a complaint may therefore be dismissed sua sponte if the claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g. claims against defendants who are immune from suits or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Although pro se Plaintiffs are given great latitude in the United States District Court and are not held to strict pleading requirements, a fundamental requirement is that the documents filed by a pro se Plaintiff must be subject to comprehension. The Civil Rights Complaint lodged by the Plaintiff on April 9, 2009 (Doc. #1), fails this initial requirement as it is incomprehensible and does not appear to name a viable, identifiable defendant. The court should dismiss this action. In view of the obviously frivolous nature of the case, it would be appropriate to dismiss the case without leave to amend. IT IS HEREBY ORDERED that Plaintiff's Application to Proceed In Forma Pauperis (Doc. #1) is GRANTED. 2

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IT IS FURTHER ORDERED that the Clerk shall FILE Plaintiff's Complaint. RECOMMENDATION IT IS HEREBY RECOMMENDED that the District Court enter an order dismissing this action with prejudice and entering judgment accordingly. The parties should be aware of the following: 1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule IB 3-2 of the

Local Rules of Practice, specific written objections to this Report and Recommendation within ten (10) days of receipt. These objections should be titled "Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points and authorities for consideration by the District Court. 2. That this Report and Recommendation is not an appealable order and that any

notice of appeal pursuant to Rule 4(a)(1), Fed. R. Civ. P., should not be filed until entry of the District Court's judgment. DATED: April 15, 2009.

___________________________________ UNITED STATES MAGISTRATE JUDGE

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