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Jason Everett Pellum Sr v. Fbi

December 3, 2012

JASON EVERETT PELLUM SR.,
PLAINTIFF,
v.
FBI, ET. AL, DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (Doc. 2) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (Doc. 1)

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff's complaint filed on October 12, 2011. (Doc. 1) As is required, the Court now screens the complaint and for the reasons set forth below, the Court ORDERS the matter be DISMISSED with leave to amend.

I. Motion to proceed in forma pauperis

The Court may authorize the commencement of an action without prepayment of fees "but a person who submits an affidavit that includes a statement of all assets such person . . . possesses [and] that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915. The Court has reviewed Plaintiff's motion and determined it satisfies the requirements of 28 U.S.C. § 1915. Therefore, Plaintiff's motion to proceed in forma pauperis (Doc. 2), is GRANTED.

I. Screening Requirement

Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a case in which the plaintiff proceeds 3 in forma pauperis if the court determines that the case "fails to state a claim on which relief may be 4 granted" or is "frivolous." A claim is frivolous "when the facts alleged rise to the level of the 5 irrational or the wholly incredible, whether or not there are judicially noticeable facts available to 6 contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).

II. PLEADING STANDARDS 8

General rules for pleading complaints are governed by the Federal Rules of Civil Procedure.

A 9 pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro sepleadings are held to "less stringent standards" than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

A complaint must give fair notice and state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, [A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation].

The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'

Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should 5 assume their truth and determine whether the facts would make the plaintiff entitled to relief; 6 conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court may grant 7 leave to amend a complaint to the extent that deficiencies of the complaint ...


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