Gonzalez v. Veterans Administration et al

Filing 4

ORDER to SHOW CAUSE signed by Magistrate Judge Carolyn K. Delaney on 4/1/16: Within twenty-one (21) days of the date of this order, plaintiff shall show cause in writing as to why plaintiff's causes of action against defendants Pugh and Peters are not barred by the applicable statute of limitations. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL E. GONZALEZ,

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Plaintiff,

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No. 2:15-cv-1997 MCE CKD PS (TEMP)

v.
UNITED STATES OF AMERICA1, et al,

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ORDER TO SHOW CAUSE

Defendants.

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This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and

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28 U.S.C. § 636(b)(1). Pending before the court is plaintiff’s complaint and request for leave to

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proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Although plaintiff’s in forma pauperis

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application appears complete, a determination that a plaintiff qualifies financially for in forma

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pauperis status does not complete the inquiry required by the statute.
In this regard, “‘[a] district court may deny leave to proceed in forma pauperis at the

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outset if it appears from the face of the proposed complaint that the action is frivolous or without

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merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First

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Although the caption of plaintiff’s complaint lists the first named defendant as the
“VETERANS ADMINISTRATION, a U.S. Government Agency,” the body of plaintiff’s
complaint correctly identifies the defendant as the “United States of America.” (Compl. (Dkt.
No. 1) at 1.) In this regard, “the United States is the only proper party defendant in an FTCA
action[.]” Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998).
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Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See also Smart v. Heinze, 347 F.2d

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114, 116 (9th Cir. 1965) (“It is the duty of the District Court to examine any application for leave

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to proceed in forma pauperis to determine whether the proposed proceeding has merit and if it

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appears that the proceeding is without merit, the court is bound to deny a motion seeking leave to

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proceed in forma pauperis.”).

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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of

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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to

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state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an

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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.

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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a

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complaint as frivolous where it is based on an indisputably meritless legal theory or where the

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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
Here, plaintiff’s complaint names as defendants Megan Pugh, a resident of Hawaii, and

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her mother Amy Peters, a California resident. (Compl. (Dkt. No. 1) at 4. ) According to

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plaintiff’s complaint, in July of 2009, defendant Pugh “negligently, recklessly, and unlawfully

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caused” a motor vehicle accident which injured plaintiff and his daughter. (Id. at 7.) Pugh was

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allegedly the “primary insured of Pugh’s vehicle” at the time of the accident. (Id. at 4.) Plaintiff’s

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complaint seeks, in part, “declaratory judgment” with respect to the “injuries proximately caused

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by trauma from Pugh’s negligence causing” the accident in July of 2009. (Id. at 18.)

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However, under California law claims of negligence are generally subject to a two-year

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statute of limitations. See CAL. CIV. PROC. CODE § 335.1. Here, Pugh’s alleged negligence

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occurred over six years prior to the commencement of this action. See Crowley v. Peterson, 206

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F.Supp.2d 1038 (C.D. Cal. 2002) (noting that when a plaintiff is injured as the result of an

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accident, the statute of limitations on a personal injury claim begins to run when the accident

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occurs)).

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Accordingly, within twenty-one (21) days of the date of this order, plaintiff shall show

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cause in writing as to why plaintiff’s causes of action against defendants Pugh and Peters are not

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barred by the applicable statute of limitations.2

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IT IS SO ORDERED.
Dated: April 1, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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BVD\gonzalez1997.osc.stat.lmt.

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Alternatively, plaintiff may comply with this order by filing a notice of voluntary dismissal as
to defendants Pugh and Peters.
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