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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ELFREN SANTIAGO LEFRANC

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Plaintiff,

Case No. 3:20-cv-00406-RFB-CLB
ORDER

v.
ELKO COUNTRY, et al.,
Defendants.

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This matter comes before the Court on the Ninth Circuit Court of Appeal’s Referral Notice.

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ECF No. 19. The Ninth Circuit refers the matter to the Court for the limited purpose of determining

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if Plaintiff’s in forma pauperis status should continue during his appeal or if Plaintiff’s appeal is

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frivolous or is taken in bad faith. Id.

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“[A]n appeal on a matter of law is frivolous where none of the legal points are arguable on

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their merits.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the Court dismissed Plaintiff’s

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Complaint with prejudice on the bases that Plaintiff failed to comply with this Court’s February 5,

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2021 and April 12, 2021 Orders instructing Plaintiff to file an amended complaint. Plaintiff’s

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original complaint was dismissed in its entirety due to failure to state a colorable Fourteenth

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Amendment claims against Defendants. Dismissal of a complaint for failure to state a claim upon

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which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6). See Morley

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v. Walker, 175 F.3d 756, 759 (9th Cir. 1999) (Dismissal for failure to state a claim is proper only

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if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle

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him or her to relief). The court applies the same standard under § 1915 when reviewing the

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adequacy of a complaint or an amended complaint of an incarcerated individual submitting a

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complaint pursuant to 42 U.S.C. §1983.

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Because Plaintiff failed to state a claim pursuant to 28 U.S.C. § 1915A(a) and failed to file

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an amended complaint this Court dismissed Plaintiff’s complaint with prejudice. Therefore, the

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deficiencies in Plaintiff’s complaint cannot be argued on the merits and this Court finds that the

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pending appeal is frivolous.

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IT IS THEREFORE ORDERED that Plaintiff’s in forma pauperis status shall not
continue through his appeal as his appeal is frivolous.

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DATED: July 15, 2021.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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