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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 ANDRE PATTERSON, 10 Plaintiff, 11 For the Northern District of California United States District Court 9 12 13 No. C 11-06137 JSW v. RACHIALLE FRANKLIN, Defendant. / ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE 14 15 The Court has received Plaintiff’s complaint and application to proceed in forma 16 pauperis, both filed in this Court on December 5, 2011. The Court may authorize a plaintiff to 17 file an action in federal court without prepayment of fees or security if the plaintiff submits an 18 affidavit showing that he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 19 1915(a). The in forma pauperis statute also provides that the Court shall dismiss the case if at 20 any time the Court determines that the allegation of poverty is untrue, or that the action (1) is 21 frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks 22 monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). 23 Plaintiff has failed to set forth “a short and plain statement of the claim showing that the 24 pleader is entitled to relief” as required by Rule 8 of the Federal Rules of Civil Procedure. 25 Plaintiff’s complaint fails to state a claim upon which relief can be granted because he fails to 26 allege that Defendant was acting on behalf of the federal or state government. See Public 27 Utilities Comm’n of Dist. of Columbia v. Pollak, 343 U.S. 451, 461 (1952) (holding that the 28 First and Fifth Amendments “apply to and restrict only the Federal Government and not private 1 persons.”); see also West v. Adkins, 487 U.S. 42, 48-49 (1988) (holding that a claim for relief 2 under 42 U.S.C. § 1983 requires a showing of constitutional violations committed by persons 3 acting under color of state law). 4 Accordingly, the Court HEREBY DISMISSES the complaint with leave to amend and 5 DENIES the application to proceed in forma pauperis. If Plaintiff wishes to pursue this action, 6 he must file an amended complaint and a renewed application to proceed in forma pauperis by 7 January 3, 2012. Failure to file a cognizable legal claim by this date shall result in dismissal of 8 this action with prejudice. The Court advises Plaintiff that a Handbook for Pro Se Litigants, 9 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 11 For the Northern District of California United States District Court 10 assistance may be available by making an appointment with the Legal Help Center, which is 12 located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, California, 94102. 13 14 IT IS SO ORDERED. 15 16 Dated: December 15, 2011 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ANDRE PATTERSON, Case Number: CV11-06137 JSW Plaintiff, CERTIFICATE OF SERVICE 6 7 v. 8 RACHIALLE FRANKLIN et al, 9 Defendant. / 11 For the Northern District of California United States District Court 10 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. 15 16 17 Andre Patterson 1419 Striped Bass, #F 18 San Francisco, CA 94130 19 Dated: December 15, 2011 20 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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