-JFM (PS)Smith-Lovejoy v. Nike Shoe Company, No. 2:2011cv02767 - Document 7 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS recommending that signed by Magistrate Judge John F. Moulds on 12/22/2011 ORDERING that Plaintiff's 3 October 20, 2011 request to proceed in forma pauperis is GRANTED. Plaintiff's 4 December 13, 2 011 motion to reopen case and motion for a publicdefender are DENIED. IT IS HEREBY RECOMMENDED that plaintiff's 1 October 20, 2011 complaint be dismissed without leave to amend; Referred to Judge John A. Mendez; Objections due within fourteen days after being served with these findings and recommendations. (Duong, D)
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-JFM (PS)Smith-Lovejoy v. Nike Shoe Company Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANDRE SMITH-LOVEJOY, Plaintiff, 11 12 vs. 13 No. 2:11-cv-2767-JAM-JFM (PS) NIKE SHOE CO., ORDER AND Defendant. 14 FINDINGS & RECOMMENDATIONS / 15 Plaintiff is proceeding in this action pro se. Plaintiff seeks relief pursuant to and 16 17 has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This 18 proceeding was referred to this court by Local Rule 72-302(c)(21). 19 Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is 20 unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in 21 forma pauperis will be granted. 28 U.S.C. § 1915(a). The federal in forma pauperis statute authorizes federal courts to dismiss a case if 22 23 the action is legally “frivolous or malicious,” fails to state a claim upon which relief may be 24 granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 25 § 1915(e)(2). 26 ///// 1 Dockets.Justia.com 1 A claim is legally frivolous when it lacks an arguable basis either in law or in 2 fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227- 3 28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. 5 Neitzke, 490 U.S. at 327. 6 A complaint, or portion thereof, should only be dismissed for failure to state a 7 claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set 8 of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & 9 Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer 10 v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a 11 complaint under this standard, the court must accept as true the allegations of the complaint in 12 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 13 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, 14 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 15 The court has reviewed the complaint pursuant to 28 U.S.C. § 1915 and finds that 16 it is subject to dismissal as frivolous. Plaintiff brings suit against Nike Shoe Company for 17 improper use of Nike’s logo. Plaintiff seeks his “fair share of partnership.” The one-paragraph 18 complaint contains no further allegations. In light thereof, the court finds that the claims lacks 19 an arguable basis either in law or in fact. See Neitzke, 490 U.S. at 325. The complaint, 20 therefore, should be dismissed. 21 According to the Federal Rules, leave to amend “shall be freely granted when 22 justice so requires.” FRCP Rule 15(a). However, undue delay, prejudice to the opposing party, 23 futility of the amendment, bad faith, and previous opportunities to amend may counsel against 24 granting leave to amend. Schlacter-Jones v. General Telephone of Cal., 936 F.2d 435, 443 (9th 25 Cir. 1991); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). The court finds that leave to 26 amend should be denied as futile. 2 1 On December 13, 2011, plaintiff filed a motion to reopen this case and a motion 2 for a public defender to enable him to do his taxes on time. Both of these requests will be 3 denied. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Plaintiff's October 20, 2011 request to proceed in forma pauperis is granted; 6 2. Plaintiff’s December 13, 2011 motion to reopen case and motion for a public 7 8 9 10 defender are denied; and IT IS HEREBY RECOMMENDED that plaintiff’s October 20, 2011 complaint be dismissed without leave to amend. These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 12 days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised 15 that failure to file objections within the specified time may waive the right to appeal the District 16 Court’s order. Martinez v. Ylst, 95 1 F.2d 1153 (9th Cir. 1991). 17 DATED: December 22, 2011. 18 19 20 21 /014;love2878.dismiss 22 23 24 25 26 3