Song v. Chang

Filing 8

ORDER DISMISSING CASE. Signed by Judge Charles R. Breyer on 3/21/2006. (crblc1, COURT STAFF) (Filed on 3/21/2006) Additional attachment(s) added on 3/22/2006 (be, COURT STAFF).

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Song v. Chang Doc. 8 Case 3:06-cv-01885-CRB Document 8 Filed 03/21/2006 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 I N THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF CALIFORNIA U n it e d United States District Court 11 12 For the Northern District of California L E S LI E B. SONG, P l a i n ti f f , v. S H Y U E Y. CHANG and DOES 1-5, Defendan ts. / N o . C 06-1885 CRB O R D E R OF DISMISSAL WITH P R E J UD I C E 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N o w before the Court is plaintiff's application to proceed in forma pauperis ("IFP"). A court may authorize a plaintiff to prosecute an action in federal court without prepayment o f fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay suc h fees or give security therefor. See 28 U.S.C. 1915(a). Plaintiff has submitted the required documentation, and it is evident from his application that his assets and income are i n s u f f ic i e n t to enable plaintiff to prosecute the action. View ing plaintiff's application in isolation, it appears that he should be allowed to proc eed IFP. A court is under a continuing duty, however, to dismiss a case whenever it d e t e r m in e s that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which r e l ie f may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. 1915(e)(2)(B)(i)-- (iii). T h i s action is identical to two previous actions filed by plaintiff and dismissed by this Case 3:06-cv-01885-CRB Document 8 Filed 03/21/2006 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 C o u r t , 05-3041 and 05-3813. Plaintiff is a physician. He alleges that while he was working a s an intern at Taipei Veterans General Hospital in Taiwan in the 1980's he was treated by defe ndan t, a surgeon, for treatment of snoring. Plaintiff claims that defendant intentionally create d a severe upper airway obstruction and that this intentional conduct caused plaintiff to b e c o m e permanently disabled. He alleges that defendant engaged in such "intentional m a y h e m " because defendant resented plaintiff's American medical education, advanced d e g r e e s and United States citizenship. T h e Court dismissed plaintiff's original complaint in 05-3041 because plaintiff did not i d e n t if y under what law or statute he made his claims. The Court also held that it did not h a v e venue of plaintiff's claims. The Court also found that plaintiff's complaint d e m o n s t r a te d that the Court did not have personal jurisdiction of defendant, a Taiwan s u r g e o n ; in particular, the complaint's jurisdictional allegations did not satisfy either general o r specific jurisdiction. For all these reasons, the Court dismissed plaintiff's complaint w i t h o u t prejudice. P l a i n ti f f ' s second complaint, 05-3813, identified the statute pursuant to which he b r o u g h t his claim: the Antiterrorism Act of 1990, 18 U.S.C. section 2333. The Court also d i s m i ss e d that action and entered judgment. The Court held that it did not have personal jurisdictio n of defendant, a physician residing in Taiwan, and also held that the statute did n o t apply to the facts alleged by plaintiff as a matter of law. P l a i n ti f f filed another action, entitled "Notice of Declination and Objection Including Co mp laint." He objects to the assignment of this action to this Court. As this case is identic al to the previous two actions filed by plaintiff, this lawsuit was appropriately reassig ned to this Court. P l a i n ti f f ' s complaint must be dismissed for all the reasons the Court stated in its order dism issing 05-3813. Plaintiff admits that defendant resides in Taiwan; he erroneously asserts t h a t he need not show that this Court has personal jurisdiction of defendant. His new plea din g also does not state a claim under the Antiterrorism Act as a matter of law. Accordingly, plaintiff's complaint is DISMISSED with prejudice. The Court has ruled. If 2 United States District Court 11 12 For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:06-cv-01885-CRB Document 8 Filed 03/21/2006 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 p l a i n ti f f disagrees with this Court's ruling, he may appeal to the Ninth Circuit Court of Ap peals; however, he may not continue to file the same action in this Court. I T IS SO ORDERED. D a t e d : March 21, 2006 CHARLES R. BREYER U N I TE D STATES DISTRICT JUDGE United States District Court 11 12 For the Northern District of California 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 G:\CRBALL\2006\1885\orderofdismissal.wpd

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