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Arledge v. Hosley

United States District Court, D. Idaho

October 31, 2018

DOUGLAS RAY ARLEDGE, Plaintiff,
v.
NANCY K. HOSLEY, JOHN AND JANE DOE, A-Z et. al., Defendants.

          MEMORANDUM DECISION & ORDER RE: APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

          B. Lynn Winmill Chief U.S. District Court Judge

         INTRODUCTION

         The Court has before it Plaintiff's Application to Proceed in District Court Without Repaying Fees or Costs (Dkt. 1). Plaintiff conditionally filed his Complaint pursuant to his request for in forma pauperis status. For the reasons explained below, the Court will deny the application without prejudice and allow Plaintiff to file an amended complaint.

         STANDARD OF REVIEW

         A. In Forma Pauperis

         An in forma pauperis application may be authorized by the Court in any civil suit without prepayment of fees or security by a person who submits an affidavit that includes a statement (1) of all assets he possesses, and (2) that the person is unable to pay such fees or give security. 28 U.S.C.1915(a)(1). An affidavit is sufficient if it states that the Plaintiff, because of his poverty, cannot “pay or give security for the costs” and still be able to provide himself and dependents “with necessities of life.” Adkins v. E.I. DuPont de Numours & Co., 335 U.S. 331, 339 (1948).

         Here, Plaintiff submitted an application that states he is homeless, he will receive unemployment assistance of Three Hundred and Thirty-Five Dollars and Zero Cents ($335.00) per week for the next 9 weeks, and he is unable to pay the filing fee (Dkt. 1). He lists $700 per month in financial obligations that include: truck payment, gas, school loan, phone, car insurance, and a storage unit. Plaintiff has sufficiently pled his inability to pay the costs of the proceeding and still provide himself with the necessities of life. See Adkins, 335 U.S. at 339.

         B. 28 U.S.C. § 1915(e)

         The Court is required to review in forma pauperis complaints seeking relief to determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915(e). Section 1915(e) of Title 28 of the United States Code authorizes federal courts to dismiss claims filed in forma pauperis “at any time if the court determines that . . . the action . . . is frivolous or malicious . . . [or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). Pleadings prepared by pro se litigants are held to a less stringent standard and are liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also, King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986).

         An in forma pauperis complaint is frivolous if it has “no arguable basis in fact or law.” O'Loughlin, 920 F.2d at 617. The United States Supreme Court has stated that a complaint filed in forma pauperis may be dismissed as frivolous if it is premised upon “fantastic or delusional scenarios, ” outlandish legal theories, or the infringement of a legal interest that does not exist. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000)). Moreover, “[a] finding of factual frivolousness is appropriate when the facts as alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992).

         Additionally, a complaint should be dismissed under Federal Rule of Civil Procedure 8 if the factual allegations are not “plausible, ” but merely “conceivable.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009). A complaint should be dismissed under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Although the Court generally construes pro se pleadings liberally when conducting an initial review, “pro se litigants must follow the same rules of procedure that govern other litigants.” Id. (quoting King, 814 F.2d at 567).

         DISCUSSION

         Arledge's Complaint is somewhat difficult to comprehend, but it appears he is alleging fraud against Nancy K. Hosley. It appears he is alleging that Hosley violated the Idaho Uniform Probate Code by failing to pay Federal or State estate taxes, and by illegally distributing his father's estate. To prove fraud in Idaho, a plaintiff must establish the following elements: “(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge about its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on the [representation]; (8) his rights to rely thereon; (9) his consequent and proximate injury.” Jenkins v. Boise Cascade Corp., 108 P.3d 380, 386 (Idaho 2005) (internal citation omitted). Moreover, these elements must be pled with particularity. That is, a party claiming fraud or mistake is required to go beyond the minimalist requirements of Rule 8(a)(2) and must state “with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b).

         To satisfy the particularity requirement, Arledge “must set forth more than the neutral facts necessary to identify the transaction.” Yourish v. Cal. Amplifier, 191 F.3d 983, 993 (9th Cir. 1999) (internal quotation mark omitted). Examples of “neutral facts” are the “time, place, and content of the alleged misrepresentation.” In re GlenFed Sec. Litig., 42 F.3d 1541, 1547-48 (9th Cir. 1994) (en banc), superseded by statute on other grounds as stated in SEC v. Todd, 642 F.3d 1207, 1216 (9th Cir. 2011). Instead, “[t]he plaintiff must set forth what is false or misleading about a statement, and why it is false.” Id. (emphasis added). Alleging why a ...


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