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Wheeler v. American Tobacco Co.

May 27, 2010

JOHN FREDERICK WHEELER, PLAINTIFF,
v.
AMERICAN TOBACCO CO., INC., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING MOTION TO PROCEED INFORMA PAUPERIS AND DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (Docs. 1, 2)

Plaintiff is proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). On May 14, 2010, plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2).

I. IFP Motion

In his IFP application, Plaintiff states his monthly income amounts to $845.00 in SSI benefits. (Doc. 2). He states neither he nor his wife have any other income. (Id. at 1). He further states that his monthly household expenses are equivalent to his monthly income. (Id. at 2). Plaintiff further states he has no other cash, savings or assets. (Id.) Based on this submission, the Court finds that Plaintiff is unable to pay the costs of commencing this action.

Plaintiff's IFP motion is granted.

II. Complaint

A. Screening

The Court is required to review a case filed in forma pauperis. 28 U.S.C. §1915A(a); 28 U.S.C. 1915(e). The Court must review the complaint and dismiss the action if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); see Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987 (citing Franklin v. Murphy, 745 F. 2d 1221, 1228 (9th Cir. 1984)). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-1128 (9th Cir. 2000) (en banc).

1. Section 1983 Complaint

Plaintiff's complaint seeks damages under 42 U.S.C. § 1983, which provides in pertinent part that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . .

42 U.S.C. § 1983.

To plead a § 1983 violation, the plaintiff must allege facts from which it may be inferred that (1) plaintiff was deprived of a federal right, and (2) the person who deprived plaintiff of that right acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Collins v. Womancare, 878 F. 2d 1145, 1147 (9th Cir. 1989). To warrant relief under § 1983, the plaintiff must allege and show that the defendants' acts or omissions caused the deprivation of the plaintiff's constitutionally protected rights. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1993). "A person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Id. There must be an actual causal connection or link ...


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