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Leveron v. Tampkins

United States District Court, Ninth Circuit

June 21, 2013

Roberto Mejia Leveron
v.
Cynthia Tampkins, et al.

CIVIL MINUTES - GENERAL

OSWALD PARADA, District Judge.

Proceedings: IN CHAMBERS: ORDER TO SHOW CAUSE

I.

Proceedings

On April 30, 2013, Roberto Mejia Leveron ("Plaintiff") lodged for filing a Civil Rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) While Plaintiff has lodged the Complaint for filing, he failed to pay the full filing fee of $350 and failed to submit an in forma pauperis application in order to proceed without payment of the full filing fee.

Further, in accordance with the mandate of the Prison Litigation Reform Act of 1995 ("PLRA"), the Court examined the Complaint for the purpose of determining whether the action 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, regardless of whether a prisoner prepays filing fees or requests to proceed in forma pauperis . See 28 U.S.C. §§ 1915(e)(2), 1915A(a), (c); 42 U.S.C. § 1997e(c)(1).

On May 8, 2013, the Court issued an order to show cause ("OSC") on or before June 14, 2013, why Plaintiff should not be required to submit the required filing fee of $350. Alternatively, the Court allowed Plaintiff the opportunity to submit the filing fee to the clerk's office prior to that date or submit an in forma pauperis application in order to proceed without payment of the full filing fee. (ECF No. 2.)

Further, the Court noted that, regardless of whether Plaintiff paid the filing fee, it appeared that the Complaint would be subject to dismissal on various grounds. The Court allowed Plaintiff until June 14, 2013, to file an amended Complaint, attempting to cure the defects in the Complaint. The Court cautioned Plaintiff that his "[f]ailure to comply with the requirements of this OSC will result in a recommendation that the in forma pauperis application be denied for failure to state a claim on which relief may be granted, for failure to prosecute, and/or for failure to comply with a court order." (Id.)

On June 12, 2013, Plaintiff filed an in forma pauperis application and an amended Complaint. (ECF No. 3.)

The Court has examined the amended Complaint in accordance with the PLRA to determine whether the action 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, regardless of whether a prisoner prepays filing fees or requests to proceed in forma pauperis . See 28 U.S.C. §§ 1915(e)(2), 1915A(a), (c); 42 U.S.C. § 1997e(c)(1). Review under § 1915(e) for failure to state a claim is governed by the same standard applied in reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Barren v. Harrington , 152 F.3d 1193, 1194 (9th Cir. 1998). A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990).

For the reasons set forth below, Plaintiff is again ordered to show cause why this matter should not be dismissed.

II.

Discussion

A. Summary of Plaintiff's ...


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