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Price v. City of Red Lodge

United States District Court, District of Montana, Billings Division

June 24, 2014

LEWIS PRICE III, Plaintiff,
v.
CITY OF RED LODGE, MONTANA, et al., Defendants.

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE TO DISMISS COMPLAINT

CAROLYN S. OSTBY UNITED STATES MAGISTRATE JUDGE

Plaintiff Lewis Price has moved for leave to proceed in forma pauperis in this action alleging violations of his due process rights in connection with the City Court of Red Lodge’s issuance of a Permanent Order of Protection. Price is a state prisoner incarcerated at the Montana State Prison in Deer Lodge, Montana.

I. MOTION TO PROCEED IN FORMA PAUPERIS

Price submitted a declaration and account statement sufficient to make the showing required by 28 U.S.C. § 1915(a). ECF 1. The request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).

Pursuant to 28 U.S.C. § 1915(b)(1), Price is required to pay the statutory filing fee of $350.00. Price submitted an account statement showing average monthly deposits of $155.46 over the six-month period between November 1, 2013 and May 7, 2014. Therefore, an initial partial filing fee of $31.09 will be assessed by this Order. 28 U.S.C. § 1915(b)(1)(B) (allowing an assessment in the amount of 20% of the prisoner’s average monthly deposits). A separate order will direct the agency having custody of Price to collect the initial partial filing fee from his prison account and forward it to the Clerk of Court.

Thereafter, Price must make monthly payments of 20% of the preceding month’s income credited to his prison trust account. The percentage is set by Congress and cannot be altered. 28 U.S.C. § 1915(b)(2). A separate order will direct the agency having custody of Price to forward payments from his account to the Clerk of Court each time the account balance exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915, 1915A

Because Price is a prisoner proceeding in forma pauperis, his Complaint is subject to screening under 28 U.S.C. §§ 1915, 1915A. These sections allow for the dismissal of a pro se complaint before it is served on the defendants if it is frivolous, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.

A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted if a plaintiff fails to allege the “grounds” of his “entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation omitted). Rule 8(a)(2) requires a complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted).

“A document filed pro se is ‘to be liberally construed, ’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers’.” Erickson v. Pardus, 551, U.S. 89 (2007); Cf. Fed.R.Civ.P. 8(f) (“All pleadings shall be so construed as to do substantial justice”).

Although the statute requires a dismissal for the reasons stated, the district court may grant leave to amend. Lopez v. Price, 203 F.3d 1122, 1127 (9th Cir. 2000). The court can deny leave to amend if “it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez, 203 F.3d. at 1127 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Leave to amend is liberally granted to pro se litigants unless it is “absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (citing Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)).

III. STATEMENT OF THE CASE

A. Parties

Price is a state prisoner currently incarcerated at the Montana State Prison in Deer Lodge, Montana. He names the City of Red Lodge, Montana; Carbon County Montana; Jane/John Doe, Clerk at the Red Lodge City Court; Jane/John Doe, Clerk/Paralegal, Carbon County Attorney’s Office; Jane/John Doe Clerk/Law Enforcement at the Carbon County Sheriff’s Office; Jane/John Doe, Clerk/Law Enforcement at the City ...


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