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Hare v. Billings Police Department

United States District Court, D. Montana, Billings Division

February 15, 2018

ALBERT HARE, Plaintiff,
v.
BILLINGS POLICE DEPARTMENT, OFFICER SOLORIO, and CHARLEE MARSH, Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Albert Hare, a state prisoner proceeding without counsel, filed a motion to proceed in forma pauperis (Doc. 1) and a proposed complaint (Doc. 2) alleging Defendants violated his rights under the Equal Access to Justice Act, 28 U.S.C. § 2412 and his rights under the Fourteenth Amendment to the United States Constitution. He alleges he was the victim of a crime and Defendants did not arrest the individual who allegedly assaulted him and he did not receive assistance from victim services.

         The motion to proceed in forma pauperis will be granted but the Complaint fails to state a federal claim and should be dismissed.

         I. MOTION TO PROCEED IN FORMA PAUPERIS

         Pursuant to 28 U.S.C. § 1915(b)(1), Mr. Hare must pay the statutory filing fee of $350.00. Mr. Hare submitted an account statement showing an inability to pay that fee; therefore, the initial partial filing fee is waived, and he may proceed with the case. See Bruce v. Samuels, 136 S.Ct. 627, 629 (2016)(“the initial partial filing fee may not be exacted if the prisoner has no means to pay it, § 1915(b)(4)”).

         Mr. Hare will be required to pay the filing fee in installments and make monthly payments of 20% of the preceding month's income credited to his prison trust account. The percentage is set by statute and cannot be altered. 28 U.S.C. § 1915(b)(2). Mr. Hare must make these monthly filing-fee payments simultaneously with the payments required in any other cases he has filed. Id. By separate order, the Court will direct the facility where Mr. Hare is held 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 and § 1915A

         A. Standard

         Because Mr. Hare is a prisoner proceeding in forma pauperis, the Court must review his Complaint under 28 U.S.C. § 1915 and § 1915A. Sections 1915A(b) and 1915(e)(2)(B) require the Court to dismiss a complaint filed in forma pauperis and/or by a prisoner against a governmental defendant before it is served if it is frivolous or malicious, 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 case is malicious if it was filed with the intention or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). 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 of the Federal Rules of Civil Procedure provides that a complaint “that states a claim for relief must contain . . . a short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This rule 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, 556 U.S. 662, 678 (2009) (quotations omitted).

         A complaint's allegations must cross “the line from conceivable to plausible.” Iqbal, 556 U.S. at 680. There is a two-step procedure to determine whether a complaint's allegations cross that line. See Twombly, 550 U.S. at 556; Iqbal, 556 U.S. 662. First, the Court must identify “the allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679, 680. Factual allegations are not entitled to the assumption of truth if they are “merely consistent with liability, ” or “amount to nothing more than a ‘formulaic recitation of the elements' of a constitutional” claim. Id. at 679, 681. A complaint stops short of the line between probability and the possibility of relief where the facts pled are merely consistent with a defendant's liability. Id. at 678.

         Second, the Court must determine whether the complaint states a “plausible” claim for relief. Iqbal, 556 U.S. at 679. A claim is “plausible” if the factual allegations, which are accepted as true, “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. This inquiry is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). If the factual allegations, which are accepted as true, “do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Id. (citing Fed.R.Civ.P. 8(a)(2)).

         “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. Pardu, 551 U.S. 89, 94 (2007); cf. Fed. Rule ...


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