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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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 No. C 11-4887 WHA (PR) Plaintiff, For the Northern District of California United States District Court DEAN PAUL STEPHENS, 11 ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 12 v. 13 14 CHARLES PRANDI; MICHAEL SMITH; (Docket No. 2) 15 Defendants. / 16 17 Plaintiff has filed a pro se civil rights complaint under 42 U.S.C. 1983 against officials 18 of the Marin County Jail for “removing” his “vertebrae and femurs” in 1989 and 1991. Claims, 19 such as these, that are based on factual contentions that are clearly impossible, baseless, 20 fantastic or delusional should be dismissed as frivolous under 28 U.S.C. 1915(e)(2). See 21 Denton v. Hernandez, 504 U.S. 25, 32 (1992) (citing Section 1915(e)); Neitzke v. 22 Williams, 490 U.S. 319, 328 (1989). Moreover, even if some portion of these allegations 23 could possibly be true, the statute of limitations for an incarcerated person’s claim is at most, 24 including tolling, four years from discovery of the factual predicate of the claim. See Cal. Civ. 25 Proc. Code §§ 335.1 (allowing two years), 352.1(a) (allowing up to two years of tolling for 26 incarceration). If plaintiff’s vertebrae or femurs were actually removed in 1989 and 1991, as he 27 alleges, he would have known it at the time, and the four-year statute of limitations has long 28 since expired. Consequently, the instant action is DISMISSED for failure to state a cognizable 1 2 claim for relief. Plaintiff’s application to proceed in forma pauperis (docket number 2) is GRANTED in 3 light of his lack of funds. As plaintiff was not a prisoner when this case was filed, the 4 provisions of 28 U.S.C. 1915(b) requiring initial and installment payments of the filing fee does 5 not apply. 6 The clerk shall enter judgment and close the file. 7 IT IS SO ORDERED. 8 9 28 , 2011. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 Dated: October 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 G:\PRO-SE\WHA\CR.11\STEPHENS4887.DSM.wpd 28 2

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