Weaver v. Cold Water et al

Filing 4

ORDER OF DISMISSAL; ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Richard Seeborg on 7/10/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 7/10/2014)

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1 2 *E-Filed 7/10/14* 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 SAN FRANCISCO DIVISION 9 United States District Court For the Northern District of California 10 WILLIE WEAVER, Plaintiff, 11 ORDER OF DISMISSAL; v. 12 13 No. C 14-2492 RS (PR) ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS COLD WATER, et al., Defendants. 14 / 15 INTRODUCTION 16 17 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983. A review of the 18 complaint under 28 U.S.C. § 1915A(a) shows that the claims are frivolous. Accordingly, the 19 action is DISMISSED with prejudice. DISCUSSION 20 21 22 A. Standard of Review A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 23 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 24 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 25 plausibility when the plaintiff pleads factual content that allows the court to draw the 26 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 27 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 28 No. C 14-2492 RS (PR) ORDER OF DISMISSAL cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 2 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 3 Dismissal is appropriate when the complaint is “frivolous, malicious, or fails to state a claim 4 upon which relief may be granted.” 28 U.S.C. § 1915A(b). Dismissal under § 1915 for 5 frivolousness prior to service is appropriate where no legal interest is implicated, i.e., where a 6 claim is premised on an indisputably meritless legal theory or is clearly lacking any factual 7 basis. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Cato v. United States, 70 F.3d 8 1103, 1106 (9th Cir. 1995). If as a matter of law “it is clear that no relief could be granted 9 under any set of facts that could be proved consistent with the allegations,” Hishon v. King & 10 United States District Court For the Northern District of California 1 Spaulding, 467 U.S. 69, 73 (1984), “a claim must be dismissed, without regard to whether it 11 is based on an outlandish legal theory or on a close but ultimately unavailing one,” Williams, 12 490 U.S. at 327. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 13 essential elements: (1) that a right secured by the Constitution or laws of the United States 14 was violated, and (2) that the alleged violation was committed by a person acting under the 15 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. 17 Disposition Plaintiff claims that the hot water was cut off for five days. It is clear that such claims 18 are frivolous and that relief could not be granted under any set of facts that could be proved 19 consistent with the allegations. Hishon, 467 U.S. at 73. The claims are DISMISSED with 20 prejudice. Plaintiff’s application for leave to proceed in forma pauperis (Docket No. 3) is 21 DENIED because the action is frivolous. Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 22 1370 (9th Cir. 1987). The Clerk shall terminate Docket No. 3, enter judgment in favor of 23 defendants, and close the file. 24 IT IS SO ORDERED. 25 DATED: July 10, 2014 RICHARD SEEBORG United States District Judge 26 27 28 No. C 14-2492 RS (PR) ORDER OF DISMISSAL 2

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