Weaver v. Third Watch et al

Filing 4

ORDER DISMISSING CASE; ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Richard Seeborg on 7/25/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 7/25/2014)

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*E-Filed 7/25/14* 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 SAN FRANCISCO DIVISION 5 6 WILLIE WEAVER, Plaintiff, 7 ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS THIRD WATCH, et al., Defendants. 10 United States District Court For the Northern District of California ORDER OF DISMISSAL; v. 8 9 No. C 14-3015 RS (PR) / 11 INTRODUCTION 12 13 This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983. A review of the 14 complaint under 28 U.S.C. § 1915A(a) shows that the claims are frivolous. Accordingly, the 15 action is DISMISSED with prejudice. DISCUSSION 16 17 18 A. Standard of Review A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 19 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 20 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 21 plausibility when the plaintiff pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 23 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 24 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 25 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 26 Dismissal is appropriate when the complaint is “frivolous, malicious, or fails to state a claim 27 upon which relief may be granted.” 28 U.S.C. § 1915A(b). Dismissal under § 1915 for 28 No. C 14-3015 RS (PR) ORDER OF DISMISSAL frivolousness prior to service is appropriate where no legal interest is implicated, i.e., where a 2 claim is premised on an indisputably meritless legal theory or is clearly lacking any factual 3 basis. See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Cato v. United States, 70 F.3d 4 1103, 1106 (9th Cir. 1995). If as a matter of law “it is clear that no relief could be granted 5 under any set of facts that could be proved consistent with the allegations,” Hishon v. King & 6 Spaulding, 467 U.S. 69, 73 (1984), “a claim must be dismissed, without regard to whether it 7 is based on an outlandish legal theory or on a close but ultimately unavailing one,” Williams, 8 490 U.S. at 327. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 9 essential elements: (1) that a right secured by the Constitution or laws of the United States 10 United States District Court For the Northern District of California 1 was violated, and (2) that the alleged violation was committed by a person acting under the 11 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 12 B. 13 Disposition Plaintiff claims that he has not received his shaving razors on some days. It is clear 14 that such claims are frivolous and that relief could not be granted under any set of facts that 15 could be proved consistent with the allegations. Hishon, 467 U.S. at 73. The claims are 16 DISMISSED with prejudice. Plaintiff’s application for leave to proceed in forma pauperis 17 (Docket No. 3) is DENIED because the action is frivolous. Tripati v. First Nat. Bank & 18 Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). The Clerk shall terminate Docket No. 3, enter 19 judgment in favor of defendants, and close the file. 20 21 IT IS SO ORDERED. DATED: July 25, 2014 RICHARD SEEBORG United States District Judge 22 23 24 25 26 27 28 No. C 14-3015 RS (PR) ORDER OF DISMISSAL 2

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