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Rusthoven v. Victor School District

United States District Court, D. Montana, Missoula Division

August 28, 2014

CLINTON RUSTHOVEN, Plaintiff,
v.
VICTOR SCHOOL DISTRICT, #7, Defendant.

ORDER, AND FINDINGS AND RECOMMENDATION

JEREMIAH C. LYNCH, Magistrate Judge.

I. INTRODUCTION

Plaintiff Clinton Rusthoven, proceeding pro se, filed a motion requesting leave to proceed in forma pauperis. He 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 Rusthoven'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 Rusthoven'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 Rusthoven'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).

II. PLAINTIFF'S ALLEGATIONS

This action emanates from Rusthoven's application for employment as a substitute teacher with Defendant Victor School District ("District"). Rusthoven alleges that on September 18, 2013, the District "toyed" with him with respect to the hiring process and its identification of the proper department to which he was to submit his application. After Rusthoven submitted his application, the District apparently told him it would have an outside agency conduct a necessary background check, and would forward Rusthoven's payment for the background check to the agency. But Rusthoven later discovered the District did not request the background check. Rusthoven states he inquired with the Montana Department of Justice and confirmed the District's "dishonesty" towards him regarding his background check. As a ...


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