Stephens v. Prandi et al

Filing 5

ORDER DISMISSING CASE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge William Alsup on 10/28/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 10/28/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 11-4887 WHA (PR)

Plaintiff,
For the Northern District of California

United States District Court

DEAN PAUL STEPHENS,
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ORDER OF DISMISSAL;
GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS

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v.
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CHARLES PRANDI; MICHAEL
SMITH;
(Docket No. 2)

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Defendants.
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Plaintiff has filed a pro se civil rights complaint under 42 U.S.C. 1983 against officials

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of the Marin County Jail for “removing” his “vertebrae and femurs” in 1989 and 1991. Claims,

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such as these, that are based on factual contentions that are clearly impossible, baseless,

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fantastic or delusional should be dismissed as frivolous under 28 U.S.C. 1915(e)(2). See

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Denton v. Hernandez, 504 U.S. 25, 32 (1992) (citing Section 1915(e)); Neitzke v.

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Williams, 490 U.S. 319, 328 (1989). Moreover, even if some portion of these allegations

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could possibly be true, the statute of limitations for an incarcerated person’s claim is at most,

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including tolling, four years from discovery of the factual predicate of the claim. See Cal. Civ.

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Proc. Code §§ 335.1 (allowing two years), 352.1(a) (allowing up to two years of tolling for

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incarceration). If plaintiff’s vertebrae or femurs were actually removed in 1989 and 1991, as he

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alleges, he would have known it at the time, and the four-year statute of limitations has long

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since expired. Consequently, the instant action is DISMISSED for failure to state a cognizable

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claim for relief.
Plaintiff’s application to proceed in forma pauperis (docket number 2) is GRANTED in

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light of his lack of funds. As plaintiff was not a prisoner when this case was filed, the

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provisions of 28 U.S.C. 1915(b) requiring initial and installment payments of the filing fee does

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not apply.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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Dated: October

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G:\PRO-SE\WHA\CR.11\STEPHENS4887.DSM.wpd

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