1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 FREDERICK O. SILVER, Case No. 3:21-CV-00420-CLB1

5 Plaintiff, ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND 6 v. DISMISSING THE ACTION

7 STATE OF NEVADA, [ECF Nos. 1, 1-1]

8 Defendant.

9 10 Before the Court is Plaintiff Frederick O. Silver’s (“Silver”) application to proceed 11 in forma pauperis, (ECF No. 1), and his pro se civil rights complaint, (ECF No. 1-1). For 12 the reasons discussed below, the Court denies the application to proceed in forma 13 pauperis, (ECF No. 1), and dismisses the proposed complaint. 14 I. LEGAL STANDARD 15 Prior to ordering service on any defendant, the court is required to screen an in 16 forma pauperis complaint to determine whether dismissal is appropriate under certain 17 circumstances. See Lopez, 203 F.3d at 1126 (noting the in forma pauperis statute at 28

(e)(2) requires a district court to dismiss an in forma pauperis complaint for 19 the enumerated reasons). Such screening is required before a litigation proceeding in 20 forma pauperis may proceed to serve a pleading. Glick v. Edwards,

, 507 21 (9th Cir. 2015). 22 “[T]he court shall dismiss the case at any time if the court determines that – (A) the 23 allegations of poverty is untrue; or (B) the action or appeal – (i) is frivolous or malicious; 24 (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief 25 against a defendant who is immune from such relief.”

(e)(2)(A), (B)(i)- 26 (iii).

27 1 This case was assigned to the undersigned pursuant to General Order 2021-03. 1 Dismissal of a complaint for failure to state a claim upon which relief may be 2 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and

1915(e)(2)(B)(ii) tracks that language. When reviewing the adequacy of a complaint under 4 this statute, the court applies the same standard as is applied under Rule 12(b)(6). See, 5 e.g., Watison v. Carter,

(9th Cir. 2012) (“The standard for 6 determining whether a plaintiff has failed to state a claim upon which relief can be granted 7 under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) 8 standard for failure to state a claim.”). Review under Rule 12(b)(6) is essentially a ruling 9 on a question of law. See Chappel v. Lab. Corp. of America,

(9th Cir. 10 2000) (citation omitted). 11 The court must accept as true the allegations, construe the pleadings in the light 12 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. 13 McKeithen,

(1969) (citations omitted). Allegations in pro se complaints 14 are “held to less stringent standards than formal pleadings drafted by lawyers[.]” Hughes 15 v. Rowe,

(1980) (internal quotations marks and citation omitted). 16 A complaint must contain more than a “formulaic recitation of the elements of a 17 cause of actions,” it must contain factual allegations sufficient to “raise a right to relief 18 above the speculative level.” Bell Atlantic Corp. v. Twombly,

(2007). 19 “The pleading must contain something more. . . than. . . a statement of facts that merely 20 creates a suspicion [of] a legally cognizable right of action.”

(citation and quotation 21 marks omitted). At a minimum, a plaintiff should include “enough facts to state a claim to 22 relief that is plausible on its face.”

; see also Ashcroft v. Iqbal,

, 678 23 (2009). 24 A dismissal should not be without leave to amend unless it is clear from the face 25 of the complaint the action is frivolous and could not be amended to state a federal claim, 26 or the district court lacks subject matter jurisdiction over the action. See Cato v. United 27 States,

(9th Cir. 1995); O’Loughlin v. Doe,

(9th 1 II. DISCUSSION 2 On December 2, 2020, United States District Judge Gloria M. Navarro deemed 3 Silver a vexatious litigant. Silver v. Clark County Nevada, 2:20-CV-00682-GMN-VCF, (D. 4 Nev. Dec. 2, 2020). Judge Navarro’s Order stated that future complaints filed by Silver 5 with the Court would be subject to prescreening. Further, the Report and 6 Recommendation, which was accepted and adopted in full by Judge Navarro’s Order, 7 stated that Silver would be required to seek leave of Court before filing any additional 8 actions. Taking both the Order and Report and Recommendation together, it appears 9 Silver did not comply with the Order. 10 On September 17, 2021, Silver filed the instant action without first obtaining leave 11 of Court. Further, a prescreening of the complaint shows that the only named 12 defendant—the State of Nevada—is immune from suit, as it is a sovereign state and 13 therefore not a “person” amenable to suit under § 1983. See Will v. Mich. Dep’t of State 14 Police,

(1989). Therefore, this action is not appropriately filed in this 15 Court and the complaint fails on its face. Because the only defendant named in this action 16 is immune from suit, further amendment would be futile, and this action is dismissed with 17 prejudice. See Cato,

. 18 III. CONCLUSION 19 IT IS THEREFORE ORDERED that Silver’s in forma pauperis application (ECF 20 No. 1) is DENIED; and 21 IT IS FURTHER ORDERED that this case is DISMISSED WITH PREJUDICE, and 22 the Clerk shall enter judgment and close the case. 23 IT IS SO ORDERED. 24 DATED: _N_o_v_e_m__b_e_r _9_, _2_0_2_1__. 25 UNITED STATES MAGISTRATE JUDGE 26 27