Smith-Lovejoy v. Physicians Mitual Insurance et al

Filing 11

ORDERED that P's # 1 Request to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that P's complaint (# 1 -1) is DISMISSED without leave to amend. IT IS FURTHER ORDERED that P's # 6 Motion for Trial de Nova for Revocation of Gaming License, # 7 Motion to Shorten Time, and # 10 Motion for Emergency Relief are DENIED as moot because P's case has been dismissed. The Clerk shall enter judgment accordingly. Signed by Judge Edward C. Reed, Jr on 2/16/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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7 ANDRE SMITH-LOVEJOY,
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Plaintiff,

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9 vs.
10 PHYSICIANS MUTUAL INSURANCE;
SMITH’S FOOD & DRUG STORES; NIKE
11 SHOE COMPANY,
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Defendants.

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3:12-cv-00011-ECR-VPC
Order

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I. Leave to Proceed in Forma Pauperis
Plaintiff proceeds in this action pro se.

Plaintiff seeks to

17 proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

Plaintiff

18 has submitted the required affidavit (#1) showing that he is unable
19 to prepay fees and costs or give security for them.

The request to

20 proceed in forma pauperis will therefore be granted.
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II. The Complaint
Section 1915 authorizes the Court to dismiss a case if it is

24 legally “frivolous or malicious,” fails to state a claim upon which
25 relief may be granted, or seeks monetary relief from an immune
26 defendant.

28 U.S.C. § 1915(e)(2).

A claim is legally frivolous if

27 it lacks an arguable basis either in law or in fact.

Neitzke v.

28 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d

1 1221, 1227-28 (9th Cir. 1984).

The Court may therefore dismiss a

2 claim as frivolous if it is based on a legal theory indisputably
3 without merit or where the factual contentions are clearly baseless.
4 Neitzke, 490 U.S. at 327.
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The Court has reviewed the complaint (#1-1) pursuant to 28

6 U.S.C. § 1915 and finds that it is subject to dismissal as
7 frivolous.

Plaintiff brings a section 1983 civil rights suit

8 against Defendants for failing to provide him with social security
9 payments in accord with a 100 million dollar insurance policy and
10 for the use of his artwork.
11 partnership.”

Plaintiff seeks his “fair share of the

The one-paragraph complaint (#1-1) contains no

12 further allegations.

Moreover, Plaintiff provides that this suit

13 has already been dismissed by the Eastern District of California,
14 and he seeks to re-litigate the same case here in the District of
15 Nevada.

For the foregoing reasons, the Court finds that the claims

16 lack an arguable basis in either law or in fact.

Accordingly, the

17 complaint (#1) should be dismissed as frivolous.
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III. Leave to Amend

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Pursuant to Federal Rule of Civil Procedure 15(a), leave to

21 amend is to be “freely given when justice so requires.”
22 amendment should be allowed with “extreme liberality.”

In general,
Owens v.

23 Kaiser Found. Health Plan, Inc., 244 F.3d 708 712 (9th Cir. 2001)
24 (quoting Morongo Band of Missions Indians v. Rose, 893 F.2d 1074,
25 1079 (9th Cir. 1990)).

However, if factors such as undue delay, bad

26 faith, dilatory motive, undue prejudice, or futility of amendment
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1 are present, leave to amend may properly be denied in the district
2 court’s discretion.

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

3 1048, 1051-52 (9th Cir. 2003).

The Court finds that leave to amend

4 should be denied as futile because Plaintiff’s claims are baseless.
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IV. Conclusion
Plaintiff’s claim must be dismissed because it is legally

8 frivolous, having no basis in either law or fact.
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IT IS, THEREFORE, HEREBY ORDERED that Plaintiff’s request to

11 proceed in forma pauperis (#1) is GRANTED.
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IT IS FURTHER ORDERED that Plaintiff’s complaint (#1-1) is

14 DISMISSED without leave to amend.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Trial de Nova

17 for Revocation of Gaming License (#6), Motion to Shorten Time (#7),
18 and Motion for Emergency Relief (#10) are DENIED as moot because
19 Plaintiff’s case has been dismissed.
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The Clerk shall enter judgment accordingly.

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23 DATED: February 16, 2012.
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UNITED STATES DISTRICT JUDGE

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