Lefranc v. Elko County et al

Filing 20

ORDER - Plaintiff's in forma pauperis status shall not continue through his appeal as his appeal is frivolous. Signed by Judge Richard F. Boulware, II on 7/15/2021. (Copies have been distributed pursuant to the NEF - SMR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 ELFREN SANTIAGO LEFRANC 8 9 10 11 Plaintiff, Case No. 3:20-cv-00406-RFB-CLB ORDER v. ELKO COUNTRY, et al., Defendants. 12 13 This matter comes before the Court on the Ninth Circuit Court of Appeal’s Referral Notice. 14 ECF No. 19. The Ninth Circuit refers the matter to the Court for the limited purpose of determining 15 if Plaintiff’s in forma pauperis status should continue during his appeal or if Plaintiff’s appeal is 16 frivolous or is taken in bad faith. Id. 17 “[A]n appeal on a matter of law is frivolous where none of the legal points are arguable on 18 their merits.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the Court dismissed Plaintiff’s 19 Complaint with prejudice on the bases that Plaintiff failed to comply with this Court’s February 5, 20 2021 and April 12, 2021 Orders instructing Plaintiff to file an amended complaint. Plaintiff’s 21 original complaint was dismissed in its entirety due to failure to state a colorable Fourteenth 22 Amendment claims against Defendants. Dismissal of a complaint for failure to state a claim upon 23 which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6). See Morley 24 v. Walker, 175 F.3d 756, 759 (9th Cir. 1999) (Dismissal for failure to state a claim is proper only 25 if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle 26 him or her to relief). The court applies the same standard under § 1915 when reviewing the 27 adequacy of a complaint or an amended complaint of an incarcerated individual submitting a 28 complaint pursuant to 42 U.S.C. §1983. 1 Because Plaintiff failed to state a claim pursuant to 28 U.S.C. § 1915A(a) and failed to file 2 an amended complaint this Court dismissed Plaintiff’s complaint with prejudice. Therefore, the 3 deficiencies in Plaintiff’s complaint cannot be argued on the merits and this Court finds that the 4 pending appeal is frivolous. 5 6 IT IS THEREFORE ORDERED that Plaintiff’s in forma pauperis status shall not continue through his appeal as his appeal is frivolous. 7 8 DATED: July 15, 2021. 9 __________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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