Herrington v. Napa State Hospital

Filing 9

ORDER OF DISMISSAL. Signed by Magistrate Judge Jacqueline Scott Corley on 8/23/2017. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 8/23/2017)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 DAVID F. HERRINGTON, 9 Plaintiff, 10 ORDER OF DISMISSAL v. 11 United States District Court Northern District of California Case No.17-cv-02637-JSC NAPA STATE HOSPITAL, 12 Defendant. 13 14 Plaintiff, an inmate at Napa State Hospital (“NSH”), filed this pro se civil rights complaint 15 under 42 U.S.C. ' 1983 alleging that five NSH employees had “killed” him.1 Liberally construing 16 this allegation to mean that Plaintiff’s vital signs had been temporarily stopped by staff members 17 before he was resuscitated, the complaint was dismissed with leave to amend because Plaintiff had 18 failed to allege what each of the different staff members had done, what Plaintiff had done before, 19 during and after the assault, and approximately when and where the assault took place. Plaintiff 20 has not filed an amended complaint, and the deadline for doing so has passed. 21 Plaintiff did file two single-page, unsigned documents setting forth brief narratives with 22 additional details about the incident complained of in the complaint, including the actions of the 23 different staff members and the date and location of the incident. (ECF Nos. 7, 8.) The two 24 documents could conceivably be construed as an amended complaint, but doing so would be an 25 exercise in futility for two reasons. First, unsigned pleadings are not allowed. See Fed. R. Civ. P. 26 11. Secondly, even if they were signed, the documents indicate that the alleged assault took place 27 1 28 Plaintiff consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 3.) 1 in 2009, which makes his claims untimely even under the maximum possible statute of limitations 2 --- four years --- for claims by prisoners under Section 1983.2 While the former defect can 3 presumably be cured, the latter cannot. In light of the foregoing, this action is DISMISSED. The Clerk shall enter judgment and 4 5 close the file. IT IS SO ORDERED. 6 7 Dated: August 23, 2017 8 9 JACQUELINE SCOTT CORLEY United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The limitations period for a claim under Section 1983 is that of the forum state for personal injury torts. Two Rivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999). An inmate has four years to bring a § 1983 claim for damages in California, i.e., the regular two-year period under California Civil Procedure Code § 335.1 plus two years during which accrual was postponed due to the disability of imprisonment under California Civil Procedure Code § 352.1. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 916-17 (9th Cir. 1999). 2

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