Miller v. Leissler

Filing 2

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. Amended Complaint deadline: 11/24/2010. Clerk of Court shall file the complaint. Complaint will be dismissed without prejudice. Signed by Magistrate Judge Lawrence R. Leavitt on 10/25/10. (Copies have been distributed pursuant to the NEF - ASB)

Miller v. Leissler

Doc. 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. FREDERICK LEISSLER, Defendant. JOHN MILLER, Plaintiff, UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** ) ) ) ) ) ) ) ) ) )

2:10-cv-01620-PMP-LRL ORDER

Plaintiff has submitted an Application to Proceed In Forma Pauperis and a Complaint (#1) using the court's § 1983 civil rights complaint form. The court finds that plaintiff is unable to prepay the filing fee. Further, although the court will dismiss the Complaint, it will do so without prejudice to allow plaintiff to cure the deficiencies listed below. I. In Forma Pauperis Application Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that she is unable to prepay fees and costs or give security for them. Accordingly, her request to proceed in forma pauperis will be granted pursuant to § 1915(a). II. Screening the Complaint Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint pursuant to § 1915(e). Specifically, federal courts are given the authority to dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. § 1915(e)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (internal quotations and

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citation omitted). In considering whether the plaintiff has stated a claim upon which relief can be granted, all material allegations in the complaint are accepted as true and are to be construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). Allegations of a pro se complaint are held to less stringent standards than formal pleading drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation omitted). Pursuant to § 1983 plaintiff brings a civil rights complaint against Frederick Leissler. The substance of plaintiff's allegations reveals, however, that he is not alleging a civil rights violation under § 1983. Instead, plaintiff accuses Leissler of the crime of conversion for allegedly taking control of plaintiff's paintings, U.S. mint coins, and art supplies, among other things. Plaintiff does not establish that the allegations are traceable to the state. See Blum v. Yaretsky, 457 U.S. 991, 1002-12 (1982) (private persons who are not government officials may be sued under § 1983, but they and their actions must be very closely tied to the government in order to be considered "acting under color of state law"). Nor has plaintiff alleged a violation of any other federal law. Hence, plaintiff's Complaint must be dismissed for failure to state a claim upon which relief may be granted under § 1983. Plaintiff will, however, be given an opportunity to amend his Complaint. The amended complaint must cure the deficiencies listed above. Accordingly, and for good cause shown, IT IS ORDERED that plaintiff's Application to Proceed In Forma Pauperis (#1) is GRANTED. IT IS FURTHER ORDERED that plaintiff is permitted to maintain the action to conclusion without necessity of prepayment of any additional fees, costs, or security. This Order granting forma pauperis status shall not extend to the issuance of subpoenas at government expense. IT IS FURTHER ORDERED that the Clerk of Court shall file the complaint. 2

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IT IS FURTHER ORDERED that the Complaint will be dismissed without prejudice. IT IS FURTHER ORDERED that plaintiff shall file an amended complaint by November 24, 2010, or his case may be dismissed with prejudice. DATED this 25th day of October, 2010.

LAWRENCE R. LEAVITT UNITED STATES MAGISTRATE JUDGE

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