United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH, UNITED STATES MAGISTRATE JUDGE.
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.
motion to proceed in forma pauperis will be granted but the
Complaint fails to state a federal claim and should be
MOTION TO PROCEED IN FORMA PAUPERIS
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,
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).
SCREENING PURSUANT TO 28 U.S.C. § 1915 and §
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.
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).
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).
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.
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.
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 ...