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Nigel Cini v. Robin Cini-Lyon

January 25, 2012

NIGEL CINI,
PLAINTIFF,
v.
ROBIN CINI-LYON, DEFENDANT.



The opinion of the court was delivered by: Jeremiah C. Lynch United States Magistrate Judge

ORDER, and FINDINGS AND RECOMMENDATIONS

Plaintiff Nigel Cini, appearing pro se in this action, filed a Motion to Proceed In Forma Pauperis. Cini submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Because it appears he lacks sufficient funds to prosecute this action, IT IS HEREBY ORDERED that Cini's Motion to Proceed In Forma Pauperis is GRANTED. This action may proceed without prepayment of the filing fee, and the Clerk of Court is directed to file Cini's lodged complaint as of the filing date of his request to proceed in forma pauperis.

The federal statute under which leave to proceed in forma pauperis is permitted - 28 U.S.C. § 1915 - also requires the Court to conduct a preliminary screening of the allegations set forth in the litigant's pleading. The applicable provisions of section 1915(e)(2) state as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 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).

The Court will review Cini's pleading to consider whether this action can survive dismissal under the provisions of section 1915(e)(2), or any other provision of law. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138, 1142 (9th Cir. 2005).

Because Cini is proceeding pro se the Court must construe his pleading liberally, and it is held "to less stringent standards than formal pleadings drafted by lawyers[.]" Haines v. Kerner, 404 U.S. 519, 520 (1972). See also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Although the Court has authority to dismiss a defective pleading pursuant to 28 U.S.C. § 1915(e)(2), a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.

Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

Plaintiff Nigel Cini brings this action against his former wife Robin Cini-Lyon seeking relief under 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights. Cini invokes the jurisdiction of this Court under 28 U.S.C. § 1343(a) (3).*fn1

Cini's "petition" has its genesis in divorce proceedings between he and his former wife in the courts of Montana. The complete factual and procedural background of those state court proceedings is set forth in the opinion of the Montana Supreme Court affirming the judgment entered by the district court - they need not be repeated here. In re Marriage of Cini, P.3d , 2011 WL 5966376 (Mont. 2011). Apparently dissatisfied with that judgment, Cini filed this action alleging his former wife with the complicity of the Montana courts deprived him of the rights secured to him by the First, Fourth and Fourteenth Amendments to the United States Constitution. ...


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