United States District Court, E.D. California
ORDER GRANTING IFP AND DIRECTING SERVICE (ECF NO.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
who is proceeding without counsel in this action, has
requested leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (ECF No. 2.) Plaintiff's application
in support of his request to proceed in forma pauperis makes
the showing required by 28 U.S.C. § 1915. Accordingly,
the Court grants Plaintiff's request to proceed in forma
determination that a plaintiff may proceed in forma pauperis
does not complete the required inquiry. Pursuant to 28 U.S.C.
§ 1915, the Court is directed to dismiss the case at any
time if it determines that the allegation of poverty is
untrue, or if the action is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief against an immune defendant.
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). A court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
avoid dismissal for failure to state a claim, a complaint
must contain more than “naked assertions, ”
“labels and conclusions, ” or “a formulaic
recitation of the elements of a cause of action.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57
(2007). In other words, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Furthermore, a claim upon which the
court can grant relief has facial plausibility.
Twombly, 550 U.S. at 570. “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.”
Iqbal, 556 U.S. at 678. When considering whether a
complaint states a claim upon which relief can be granted,
the court must accept the well-pled factual allegations as
true, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
and construe the complaint in the light most favorable to the
plaintiff, see Papasan v. Allain, 478 U.S. 265, 283
pleadings are liberally construed. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Balistreri v.
Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir.
1988). Unless it is clear that no amendment can cure the
defects of a complaint, a pro se plaintiff proceeding in
forma pauperis is ordinarily entitled to notice and an
opportunity to amend before dismissal. See Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)
superseded on other grounds by statute as stated in Lopez
v. Smith, 203 F.3d 1122 (9th Cir.2000) (en banc);
Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.
1984). Nevertheless, leave to amend need not be granted when
further amendment would be futile. See Cahill v. Liberty
Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996).
construed, Plaintiff's Complaint asserts that officers
from the Sacramento Police Department used excessive force in
arresting Plaintiff, in violation of his Fourth Amendment
rights. (See ECF No. 1.) Based on the limited
record, the Court cannot conclude that Plaintiff's action
is frivolous, that the Complaint fails to state a claim on
which relief can be granted, or that Plaintiff seeks monetary
relief from an immune defendant. The Court reserves decision
as to Plaintiff's claim until the record is sufficiently
developed, and this order does not preclude any Defendant
from challenging Plaintiff's Complaint through a timely
motion pursuant to Federal Rule of Civil Procedure 12 or
other appropriate method of challenging Plaintiff's
pleading. Accordingly, the Court orders service of the
Complaint on the named Defendants.
foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to proceed in forma pauperis (ECF
No. 2) is GRANTED;
2. Service of the Amended Complaint is appropriate for the
3. The Clerk of Court is directed to issue forthwith all
process pursuant to Federal Rule of Civil Procedure 4;
4. The Clerk of Court shall send Plaintiff one USM-285 form,
one summons, this Court's scheduling order, and the forms
providing notice of the magistrate judge's availability
to exercise jurisdiction for all purposes;
5. Plaintiff is advised that to effectuate service, the U.S.