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Gerald Lewis Austin, #A1076082 v. Papa John's Pizza

November 10, 2011

GERALD LEWIS AUSTIN, #A1076082, PLAINTIFF,
v.
PAPA JOHN'S PIZZA,
DANIEL PHELT, JOSEPH KEVIN AUSTIN, HONOLULU POLICE DEPARTMENT OFFICERS, DEFENDANTS.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING COMPLAINT WITH LEAVE TO AMEND AND SHOW CAUSE

Before the court is pro se Plaintiff Gerald Lewis Austin's prisoner civil rights complaint and in forma pauperis application. Plaintiff is incarcerated at the Halawa Correctional Facility ("HCF"). Plaintiff names Papa John's Pizza, Daniel Phelt ("Phelt"), Joseph Kevin Austin ("Joseph" or "Plaintiff's Brother"), and unnamed Honolulu Police Department ("HPD") Officers (collectively, "Defendants") in their individual and official capacities. Plaintiff claims Defendants violated his constitutional rights during his arrest.

Plaintiff's in forma pauperis application is DENIED and his Complaint is DISMISSED for failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1). Plaintiff is granted leave to amend the Complaint, if possible, to cure the deficiencies detailed below and is ordered to show cause why this action should not be dismissed as time-barred.

I. IN FORMA PAUPERIS APPLICATION

Plaintiff's in forma pauperis application is DENIED without prejudice because it is not on this court's approved application form for prisoners and therefore lacks Plaintiff's signed consent to collect the filing fees from his prison trust account. See 28 U.S.C. § 1915(a)(2).

On or before, December 12, 2011, Plaintiff must either pay the $350.00 filing fee or submit a fully completed in forma pauperis application on the proper form, showing that he is a pauper within the meaning of the statute, and consenting to the withdrawal of fees from his account. Failure to do so may result in AUTOMATIC DISMISSAL of the Complaint and action without prejudice for failure to prosecute this action or to follow a court order. See Fed. R. Civ. P. 41(b); see also Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 1995); In re Perroton, 958 F.2d 889, 890 (9th Cir. 1992). The Clerk is DIRECTED to send Plaintiff the court'sapplication to proceed in forma pauperis by a prisoner and instructions so that he may comply with this Order.

II. STATUTORY SCREENING

The court must screen all civil actions brought by prisoners that relate to prison conditions and/or seek redress from a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if its claims are legally frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e (c)(1).

A complaint may be dismissed as a matter of law for failure to state a claim for (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). To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.

The court must construe a pro se complaint liberally, accept all allegations of material fact as true, and construe those facts in the light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Leave to amend should be granted if it appears at all possible that the plaintiff can correct the defects of his or her complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

III. DISCUSSION

"To sustain an action under section 1983, a plaintiff must show '(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.'" Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation ...


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