Patterson v. Franklin

Filing 7

ORDER DENYING 3 MOTION for Leave to Proceed in forma pauperis; AND DISMISSING CASE. Signed by Judge JEFFREY S. WHITE on 12/15/11. (jjoS, COURT STAFF) (Filed on 12/15/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ANDRE PATTERSON,

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Plaintiff,

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For the Northern District of California

United States District Court

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No. C 11-06137 JSW

v.
RACHIALLE FRANKLIN,
Defendant.
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ORDER DENYING
APPLICATION TO PROCEED IN
FORMA PAUPERIS AND
DISMISSING CASE

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The Court has received Plaintiff’s complaint and application to proceed in forma

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pauperis, both filed in this Court on December 5, 2011. The Court may authorize a plaintiff to

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file an action in federal court without prepayment of fees or security if the plaintiff submits an

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affidavit showing that he or she is unable to pay such fees or give security therefor. 28 U.S.C. §

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1915(a). The in forma pauperis statute also provides that the Court shall dismiss the case if at

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any time the Court determines that the allegation of poverty is untrue, or that the action (1) is

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frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks

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monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

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Plaintiff has failed to set forth “a short and plain statement of the claim showing that the

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pleader is entitled to relief” as required by Rule 8 of the Federal Rules of Civil Procedure.

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Plaintiff’s complaint fails to state a claim upon which relief can be granted because he fails to

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allege that Defendant was acting on behalf of the federal or state government. See Public

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Utilities Comm’n of Dist. of Columbia v. Pollak, 343 U.S. 451, 461 (1952) (holding that the

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First and Fifth Amendments “apply to and restrict only the Federal Government and not private

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persons.”); see also West v. Adkins, 487 U.S. 42, 48-49 (1988) (holding that a claim for relief

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under 42 U.S.C. § 1983 requires a showing of constitutional violations committed by persons

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acting under color of state law).

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Accordingly, the Court HEREBY DISMISSES the complaint with leave to amend and

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DENIES the application to proceed in forma pauperis. If Plaintiff wishes to pursue this action,

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he must file an amended complaint and a renewed application to proceed in forma pauperis by

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January 3, 2012. Failure to file a cognizable legal claim by this date shall result in dismissal of

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this action with prejudice. The Court advises Plaintiff that a Handbook for Pro Se Litigants,

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which contains helpful information about proceeding without an attorney, is available through
the Court’s website or in the Clerk’s office. The Court also advises Plaintiff that additional

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For the Northern District of California

United States District Court

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assistance may be available by making an appointment with the Legal Help Center, which is

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located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, California, 94102.

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IT IS SO ORDERED.

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Dated: December 15, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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ANDRE PATTERSON,

Case Number: CV11-06137 JSW

Plaintiff,

CERTIFICATE OF SERVICE

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v.
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RACHIALLE FRANKLIN et al,
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Defendant.

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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
12 District Court, Northern District of California.
13 That on December 15, 2011, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
14 listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.
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17 Andre Patterson
1419 Striped Bass, #F
18 San Francisco, CA 94130
19 Dated: December 15, 2011
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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk