Sample v. Crespo
Filing
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ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND.Plaintiff's Application to proceed in forma pauperis is DENIED WITHOUT PREJUDICE. The Case Management Conference set for 8/6/2012 is VACATED. Compliance Hearing is set for Friday, 9/4/2012 09:01 AM before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 8/2/12. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/2/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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FELITA SAMPLE,
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Plaintiff,
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Northern District of California
United States District Court
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Case No.: 11-CV-06129 YGR
ORDER DENYING APPLICATION TO PROCEED
IN FORMA PAUPERIS AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND
vs.
DEANNA CRESPO,
Defendant.
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The Court has received Plaintiff’s complaint and application to proceed in forma pauperis,
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both filed in this Court on December 5, 2011. The Court may authorize a plaintiff to file an action in
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federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that
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he or she is unable to pay such fees or give security therefor. 28 U.S.C. § 1915(a). The in forma
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pauperis statute also provides that the Court shall dismiss the case if at any time the Court determines
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that the allegation of poverty is untrue, or that the action (1) is frivolous or malicious; (2) fails to state
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a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is
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immune from such relief. 28 U.S.C. § 1915(e)(2).
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Plaintiff has failed to set forth “a short and plain statement of the claim showing that the
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pleader is entitled to relief” as required by Rule 8 of the Federal Rules of Civil Procedure. Plaintiff’s
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complaint fails to state a claim upon which relief can be granted because Plaintiff fails to allege that
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Defendant was acting on behalf of the federal or state government. See Public Utilities Comm’n of
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Dist. of Columbia v. Pollak, 343 U.S. 451, 461 (1952) (the First and Fifth Amendments “apply to and
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restrict only the Federal Government and not private persons.”); see also West v. Adkins, 487 U.S. 42,
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48-49 (1988) (a claim under 42 U.S.C. § 1983 requires constitutional violations committed by persons
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acting under color of state law).
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Accordingly, the ORDERS as follows:
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1)
Plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND.
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2)
Plaintiff’s Application to Proceed in forma pauperis is DENIED WITHOUT PREJUDICE.
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3)
The Case Management Conference set for August 6, 2012 is VACATED.
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4)
If Plaintiff wishes to pursue this action, Plaintiff must file an amended complaint and a
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renewed application to proceed in forma pauperis by September 4, 2012.
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The Court sets this matter on its compliance calendar to determine whether Plaintiff
Northern District of California
files an Amended Complaint. The date set is Friday, September 14, 2012 at 9:01 a.m. If Plaintiff
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United States District Court
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files an Amended Complaint, the Court will vacate the conference and no appearance will be
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necessary. If Plaintiff fails to amend, the case will be dismissed under Rule 41(b) for failure to
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prosecute. Toyota Landscape Co., Inc. v. Building Material & Dump Truck Drivers Local 420, 726
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F.2d 525, 528 (9th Cir. 1984).
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The Court advises Plaintiff that a Handbook for Pro Se Litigants, which contains helpful
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information about proceeding without an attorney, is available in the Clerk’s office or through the
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Court’s website, http://cand.uscourts.gov. The Court also advises Plaintiff that additional assistance
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may be available by making an appointment with the Legal Help Center. There is no fee for this
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service. To make an appointment, Plaintiff may visit the San Francisco Courthouse, located at 450
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Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, California, 94102, or call 415/782-9000
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(ext. 8657). Please visit the Court’s website or call the phone number listed above for current office
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hours, forms and policies.
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6)
This Order Terminates Docket Number 3.
IT IS SO ORDERED.
Date: August 2, 2012
_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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