Vines v. Specht

Filing 7

ORDER re 2 Granting Application to Proceed In Forma Pauperis and Dismissing Complaint. Motions terminated: 2 MOTION for Leave to Proceed in forma pauperis filed by Preston Daniel Vines, 4 MOTION to Appoint Counsel filed by Preston Daniel Vines., ***Civil Case Terminated. Signed by Judge Claudia Wilken on 6/29/2010. (ndr, COURT STAFF) (Filed on 6/29/2010)

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Preston D. Vines files an application for leave to proceed in forma pauperis (IFP). papers. The matter was decided on the IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PRESTON D. VINES, Plaintiff, v. LINDA SPECHT M.D., Defendant. / No. 10-02305 CW ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT Having considered all of the papers filed by Plaintiff, the Court grants the application to proceed IFP and dismisses the complaint. DISCUSSION A court may authorize a plaintiff to prosecute an action in federal court without prepayment of fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay such fees or provide such security. 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 insufficient to enable him to prosecute the action. Accordingly, the application to proceed without the payment of the filing fee is granted. The Court's grant of Plaintiff's application to proceed IFP, however, does not mean that he may continue to prosecute his complaint. A court is under a continuing duty to dismiss a case 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 filed without the payment of the filing fee whenever it determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." U.S.C. 1915(e)(2)(B)(i)-(iii). 28 Because a dismissal pursuant to 1915(e)(2)(B) is not a dismissal on the merits, but rather an exercise of the court's discretion under the IFP statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. Denton v. Hernandez, 504 U.S. 25, 32 (1992). Plaintiff makes the following allegations in his complaint. Defendant Doctor Linda Specht put a computer chip in Plaintiff's left knee. Plaintiff did not want her to do this. Plaintiff requests that the Federal Bureau of Investigation take a cyber forensic net picture of the chip because this is the only way to obtain evidence of the chip's existence. Plaintiff is experiencing pain and suffering because there are people dead in the United States with computer chips in their bodies. Based on these allegations, Plaintiff requests $100,000,000 in damages. Even construed liberally, Plaintiff's allegations fail to state a claim upon which relief can be granted. amendment would be futile. without leave to amend. IT IS SO ORDERED. Dated: 6/29/2010 CLAUDIA WILKEN United States District Judge Furthermore, Therefore, the complaint is dismissed 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Preston Daniel Vines 1919 Alice Drive Vallejo, CA 94589 Dated: June 29, 2010 PRESTON D. VINES, Plaintiff, v. LINDA SPECHT M.D., Defendant. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV10-02305 CW CERTIFICATE OF SERVICE / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on June 29, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 3

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