Smith-Lovejoy v. Nike Shoe Company
Filing
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ORDER and FINDINGS and RECOMMENDATIONS recommending that signed by Magistrate Judge John F. Moulds on 12/22/2011 ORDERING that Plaintiff's 3 October 20, 2011 request to proceed in forma pauperis is GRANTED. Plaintiff's 4 December 13, 2 011 motion to reopen case and motion for a publicdefender are DENIED. IT IS HEREBY RECOMMENDED that plaintiff's 1 October 20, 2011 complaint be dismissed without leave to amend; Referred to Judge John A. Mendez; Objections due within fourteen days after being served with these findings and recommendations. (Duong, D)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANDRE SMITH-LOVEJOY,
Plaintiff,
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vs.
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No. 2:11-cv-2767-JAM-JFM (PS)
NIKE SHOE CO.,
ORDER AND
Defendant.
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FINDINGS & RECOMMENDATIONS
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Plaintiff is proceeding in this action pro se. Plaintiff seeks relief pursuant to and
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has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This
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proceeding was referred to this court by Local Rule 72-302(c)(21).
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Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is
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unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in
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forma pauperis will be granted. 28 U.S.C. § 1915(a).
The federal in forma pauperis statute authorizes federal courts to dismiss a case if
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the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be
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granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915(e)(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in
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fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-
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28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless.
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Neitzke, 490 U.S. at 327.
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A complaint, or portion thereof, should only be dismissed for failure to state a
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claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set
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of facts in support of the claim or claims that would entitle him to relief. Hishon v. King &
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Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer
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v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a
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complaint under this standard, the court must accept as true the allegations of the complaint in
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question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the
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pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor,
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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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The court has reviewed the complaint pursuant to 28 U.S.C. § 1915 and finds that
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it is subject to dismissal as frivolous. Plaintiff brings suit against Nike Shoe Company for
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improper use of Nike’s logo. Plaintiff seeks his “fair share of partnership.” The one-paragraph
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complaint contains no further allegations. In light thereof, the court finds that the claims lacks
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an arguable basis either in law or in fact. See Neitzke, 490 U.S. at 325. The complaint,
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therefore, should be dismissed.
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According to the Federal Rules, leave to amend “shall be freely granted when
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justice so requires.” FRCP Rule 15(a). However, undue delay, prejudice to the opposing party,
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futility of the amendment, bad faith, and previous opportunities to amend may counsel against
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granting leave to amend. Schlacter-Jones v. General Telephone of Cal., 936 F.2d 435, 443 (9th
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Cir. 1991); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). The court finds that leave to
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amend should be denied as futile.
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On December 13, 2011, plaintiff filed a motion to reopen this case and a motion
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for a public defender to enable him to do his taxes on time. Both of these requests will be
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denied.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff's October 20, 2011 request to proceed in forma pauperis is granted;
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2. Plaintiff’s December 13, 2011 motion to reopen case and motion for a public
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defender are denied; and
IT IS HEREBY RECOMMENDED that plaintiff’s October 20, 2011 complaint
be dismissed without leave to amend.
These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised
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that failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 95 1 F.2d 1153 (9th Cir. 1991).
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DATED: December 22, 2011.
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