Genthner v. Tonkinson et al
Filing
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ORDER DENYING Motion to Proceed in Forma Pauperis and DISMISSING Matter 1 , 2 , signed by District Judge Anthony W. Ishii on 2/9/17: The Clerk shall CLOSE this case. (CASE CLOSED)(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEBBY GENTHNER,
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Plaintiff
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CASE NO. 1:16-CV-1348 AWI SKO
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS AND
DISMISSING MATTER
v.
DR. BRIEN W. TONKINSON, et al.,
(Doc. Nos. 1, 2)
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Defendants
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On September 12, 2016, Plaintiff Debby Genthner (“Genthner”) filed this civil rights
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lawsuit. See Doc. No. 1. Defendants are an ear, nose, and throat medical practice and members of
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that practice. Genthner alleges claims under 42 U.S.C. § 1983, 42 U.S.C. §1985, and state law,
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and now moves for in forma pauperis status.
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Factual Background & Claims
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The Complaint is not a model of clarity. However, the gist of the allegations are that, on
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April 29, 2014, Genthner sought medical treatment from Defendants regarding mouth and throat
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burns, sores, and pain. However, Genthner still suffered pain from the burns in her throat days
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after seeing Defendants. Further, in December 2014, Defendants cancelled a surgical procedure
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for a biopsy of a black lesion on the bottom of Genthner’s mouth and never rescheduled the
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procedure.
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Genthner brings three claims under 42 U.S.C. § 1983. Under the second cause of action,
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Genthner cites California Penal Code §§ 11160, 11161, and 11161.5 and a California Supreme
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Court case, and contends that Defendants did not report her mouth burns to the authorities. Under
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the third cause of action, Genthner cites a California case, an Ohio case, an Arkansas case, and a
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Florida case, and contends that Defendants were negligent and intentionally and negligently
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inflicted emotional distress for not diagnosing and treating her and not reporting her severe mouth
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burns to the authorities. Under the fifth cause of action, Genthner cites a Florida case, and alleges
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that Defendants were negligent and intentionally and negligently inflicted emotion distress by
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failing to perform and reschedule the biopsy on her mouth lesion.
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Genthner also brings two claims under 42 U.S.C. § 1985. Under the sixth cause of action,
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Genthner sues Defendants for conspiracy to deprive her of her right to be diagnosed and treated
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and for failure to report the severe burns in her mouth. The Complaint alleges that Dr. Tonkinson
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and P.A. Jeffrey Russell were aware that Genthner had been denied medical treatment and care by
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other doctors. Further, city officials may have contacted these Defendants in an attempt to block
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her health care, which the officials have done during the past eight years. Second, Dr. Tonkinson
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and P.A. Russell conspired to deprive her of her right to have the black mouth lesion treated.
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Genthner contends that city officials may have contacted Dr. Tonkinson and P.A. Russel to block
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her care, as these officials have done so during the past eight years.
Finally, it appears that Genthner is bringing two state law based claims.1 Under the first
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cause of action, Genthner complains about Defendants failure to treat her mouth and throat sores,
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and she cites cases from Ohio, Arkansas, Georgia, Florida, and New York that deal with
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respondeat superior liability, joint venture liability, medical malpractice, and partnership liability.
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Under the fourth cause of action, Genthner complains about Defendants failure to perform and
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reschedule the biopsy for the black mouth lesion, and she cites cases from Florida, Ohio, and
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Arkansas that deal with respondeat superior and medical malpractice.
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In Forma Pauperis Framework
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District courts “may authorize the commencement . . . of any suit, action or proceeding,
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civil or criminal . . . without prepayment of fees or security therefor, by a person who submits an
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affidavit that includes a statement of all assets such [person] possess that the person is unable to
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It is not entirely clear if the first and fourth causes of action are purely state law claims. Cases from several
jurisdictions are identified under these claims, but neither 42 U.S.C. § 1983 nor 42 U.S.C. § 1985 are identified.
Therefore, the Court view the first and fourth causes of action as alleging state law claims only.
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pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). A district court “shall dismiss
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the case at any time if the court determines” that the action is frivolous or malicious, or fails to
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state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); O'Neal v. Price, 531
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F.3d 1146, 1153 (9th Cir. 2008). An action is “frivolous” if it has no arguable basis in fact or law;
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the term embraces both inarguable legal conclusions and fanciful factual allegations. Neitzke v.
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Williams, 490 U.S. 319, 325 (1989); DeRock v. Sprint-Nextel, 584 Fed. Appx. 737 (9th Cir.
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2014); see also Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). “A
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district court may deny leave to proceed in forma pauperis at the outset if it appears from the face
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of the proposed complaint that the action is frivolous or without merit.” Minetti v. Port of Seattle,
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152 F.3d 1113, 1115 (9th Cir. 1998); Tripati, 821 F.2d at 1370. However, the “denial of leave to
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proceed in forma pauperis is an abuse of discretion unless the district court first provides a
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plaintiff leave to amend the complaint or finds that amendment would be futile.” Rodriguez v.
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Steck, 795 F.3d 1187, 1188 (9th Cir. 2015); see Tripati, 821 F.2d at 1370. If a court denies a
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motion to proceed in forma pauperis because the complaint is frivolous and cannot be cured by
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amendment, then the denial of the motion acts as a dismissal under 28 U.S.C. § 1915(e).
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Rodriguez, 795 F.3d at 1188.
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Discussion
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1.
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To establish § 1983 liability, a plaintiff “must allege a violation of a right secured by the
42 U.S.C. § 1983 Claims
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Constitution and law of the United States, and must show that the alleged deprivation was
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committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
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Genthner’s Complaint fails to allege either of these elements.
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First, no right secured by a federal constitutional provision or federal law is identified or
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discussed in the Complaint. Rather, Genthner is citing various state law statutory provisions and
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common laws, and then trying to use § 1983 as the conduit for redressing the alleged violations of
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those state laws. However, § 1983 requires a violation of federal law, not state law. Galen v.
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County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007); see also Sweaney v. Ada, 119 F.3d
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1385, 1391 (9th Cir. 1997). Genthner’s citation to and reliance on state law is insufficient. See id.
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Second, it is apparent that all defendants are private actors (a medical practice group and
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two associated medical personnel). Because the Defendants are private actors engaged in private
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conduct, there is no state action. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
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(1999) (“. . . § 1983 excludes from its reach merely private conduct, no matter how discriminatory
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or wrong.”); Lim v. Central Du Page Hosp., 871 F.2d 644, 645 (7th Cir. 1989) (holding that
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conduct of a private hospital and private physicians was not “state action.”); cf. West, 487 U.S. at
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49 (“The traditional definition of acting under color of state law requires that the defendant in a
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§ 1983 action have exercised power possessed by virtue of state law and made possible only
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because the wrongdoer is clothed with the authority of state law.”).
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Suing private actors for violations of purely state law is antithetical to a valid § 1983 claim.
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Cf. American Mfs., 526 U.S. at 50. Given the claims alleged against these private Defendants,
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which are generally in the nature of state law medical malpractice, amendment of the § 1983
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claims would be futile. See Sullivan, 526 U.S. at 50; Galen, 477 F.3d at 662. Therefore, the
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§ 1983 claims will be dismissed without leave to amend. See Rodriguez, 795 F.3d at 1188;
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Minetti, 152 F.3d at 1115.
42 U.S.C. § 1985(3)2
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2.
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The elements of a claim under 42 U.S.C. § 1985(3) are: (1) a conspiracy; (2) the
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conspiracy is for the purpose of depriving, either directly or indirectly, any person or class of
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persons of the equal protection of the laws, or of the equal privileges and immunities under the
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laws; (3) an act in furtherance of the conspiracy; and (4) the plaintiff is injured in his person or
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property, or is deprived of any right or privilege of a citizen of the United States. United
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Brotherhood of Carpenters and Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983); Sever v.
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Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). Also, “a plaintiff must show some racial,
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or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’
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action.” Orin v. Barclay, 272 F.3d 1207, 1217 (9th Cir. 2001). Also, a plaintiff must allege facts
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that demonstrate the existence of a § 1985 conspiracy, it is not enough to make a conclusory
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The Complaint does not expressly identify which subsection of § 1985 is at issue. However, because this case does
not involve conduct towards an officer of the United States (§ 1985(1)), or court proceedings/obstructing justice
(1985(2)), the Court construes the Complaint as relying on 42 U.S.C. § 1985(3). See 42 U.S.C. § 1985.
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allegation of “conspiracy” without factual specificity. Karim-Panahi v. Los Angeles Police Dept.,
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839 F.2d 621, 626 (9th Cir. 1988). Importantly, the “absence of a [§] 1983 deprivation of rights
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precludes a [§] 1985 conspiracy claim predicated on the same allegations.” Thornton v. City of St.
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Helens, 425 F.3d 1158, 1168 (9th Cir. 2005); Caldeira v. County of Kauai, 866 F.2d 1175, 1182
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(9th Cir. 1989). That is, “to state a claim for conspiracy under § 1985, a plaintiff must first have a
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cognizable claim under § 1983.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir.
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2004).
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Here, there are numerous problems with Genthner’s § 1985(3) claims. First, although the
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Complaint alleges that there was a conspiracy, the allegations are conclusory and without factual
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support. See Karim-Panahi, 839 F.2d at 626. Second, the Complaint indicates that unknown
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officials from an unknown city may have contacted Defendants Tonkinson and Russell as part of
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an eight year process of preventing Genthner from obtaining medical care. Such an allegation
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seems fanciful and implausible and thus, frivolous. See Neitzke, 490 U.S. at 325. Third, there are
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no allegations or indications that the Defendants acted with a racial or class based discriminatory
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animus. See Orin, 272 F.3d at 1217. Fourth, the Complaint does not allege a violation of equal
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protection or of any privilege or immunity under federal law. Fifth, the § 1985 claims are
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predicated on the same conduct as that identified in the § 1983 claims. Because the § 1983 claims
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fail, these corresponding § 1985(3) necessarily fail as well. See Thornton, 425 F.3d at 1168;
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Olsen, 363 F.3d at 930; Caldeira, 866 F.2d at 1182.
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Arguably, some of the deficiencies identified above could be cured through amendment.
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However, because there are no valid § 1983 claims, Genthner “cannot cure the defects of her
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complaint to state a cognizable claim under § 1985.” Olsen, 363 F.3d at 930. Therefore, the
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Court will dismiss the § 1985 claims without leave to amend. Rodriguez, 795 F.3d at 1188; Olsen,
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363 F.3d at 930; Minetti, 152 F.3d at 1115.
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3.
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With the dismissal of the § 1983 and § 1985 claims, there are no longer any claims over
State Law Claims
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which the Court has original jurisdiction. Therefore, the Court will decline to exercise
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supplemental jurisdiction over the first and fourth causes of action. See 28 U.S.C. § 1367(c)(3);
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Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911 (9th Cir. 2011); Religious Tech. Ctr. v.
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Wollersheim, 971 F.2d 364, 367-68 (9th Cir. 1992) (“When federal claims are dismissed before
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trial . . . pendent state claims should also be dismissed.”).
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4.
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The only federal claims alleged are dismissed because they are without merit and
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amendment would be futile. See Rodriguez, 795 F.3d at 1188; Minetti, 152 F.3d at 1115. The
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state law claims are no longer before the Court because supplemental jurisdiction is being
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declined. Without any claims, there is no need for in forma pauperis status. The Court will deny
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Genthner’s application to proceed in forma pauperis and will close this case.
In Forma Pauperis Status
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ORDER
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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Plaintiff’s causes of action under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 are DISMISSED
without leave to amend;
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The Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state
law causes of action;
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3.
Plaintiff’s application to proceed in forma pauperis is DENIED; and
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4.
The Clerk shall CLOSE this case.
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IT IS SO ORDERED.
Dated: February 9, 2017
SENIOR DISTRICT JUDGE
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