McInerney et al v. City of San Jose et al

Filing 13

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS, DISMISSING COMPLAINT AND DENYING AS MOOT MOTION FOR EXTENSION OF TIME TO SERVE DEFENDANTS. Signed by Judge Claudia Wilken on 10/19/2011. (ndr, COURT STAFF) (Filed on 10/19/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH MCINERNEY,

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United States District Court
For the Northern District of California

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No. 11-03018 CW

Plaintiff,

ORDER GRANTING
APPLICATION TO
PROCEED IN FORMA
PAUPERIS,
DISMISSING
COMPLAINT AND
DENYING AS MOOT
MOTION FOR
EXTENSION OF TIME
TO SERVE
DEFENDANTS

v.
CITY OF SAN JOSE, et al.,
Defendants.
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Plaintiff Joseph McInerney applies for leave to proceed in

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forma pauperis (IFP) and an extension of time to serve Defendants.

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The matter was decided on the papers.

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papers filed by Plaintiff, the Court grants the application to

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proceed IFP, dismisses the complaint and denies as moot the motion

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for an extension of time to serve Defendants.

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Having considered all of the

DISCUSSION
A court may authorize a plaintiff to prosecute an action in

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federal court without prepayment of fees or security if the

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plaintiff submits an affidavit showing that he or she is unable to

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pay such fees or provide such security.

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Plaintiff has submitted the required documentation, and it is

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evident from his application that his assets and income are

See 28 U.S.C. § 1915(a).

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insufficient to enable him to prosecute the action.

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his application to proceed without the payment of the filing fee is

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GRANTED.

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Accordingly,

The Court’s grant of Plaintiff's application to proceed IFP,

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however, does not mean that he may continue to prosecute his

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complaint.

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filed without the payment of the filing fee whenever it determines

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that the action “(i) is frivolous or malicious; (ii) fails to state

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a claim on which relief may be granted; or (iii) seeks monetary

A court is under a continuing duty to dismiss a case

United States District Court
For the Northern District of California

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relief against a defendant who is immune from such relief."

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U.S.C. § 1915(e)(2)(B)(i)-(iii).

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§ 1915(e)(2)(B) is not a dismissal on the merits, but rather an

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exercise of the court's discretion under the IFP statute, the

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dismissal does not prejudice the filing of a paid complaint making

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the same allegations.

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Because a dismissal pursuant to

Denton v. Hernandez, 504 U.S. 25, 32 (1992).

Plaintiff names many Defendants, such as the City of San Jose,

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the City and County of San Francisco, the Tides Center, the Dish,

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the John Stewart Company, Northern California Presbyterian Homes

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and Services, Silicon Valley Real Estate Investment, Walgreens, and

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several individuals.

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Defendants illegally obtained Plaintiff’s medical records from the

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San Francisco Community Mental Health Services to frame him as a

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mentally disordered sex offender so that they could incarcerate him

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in Atascadero State Hospital for the criminally insane.

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Plaintiff’s false diagnosis as a mentally disordered sex offender

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was incorporated into a counterfeit web site maintained by

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Defendants as part of a campaign to maintain illegal video

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Plaintiff makes the following allegations.

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surveillance of Plaintiff in his last three residences.

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doctored the photographs to make Plaintiff’s activities in his

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residences appear to be taking place in public.

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published this slanderous material to Lucasfilm and its attorney,

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David Anderman, who re-published it to agents of the Federal Bureau

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of Investigation.

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Plaintiff in order to impede Plaintiff’s chances of being employed

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by Lucasfilm and to frame Plaintiff for fraud, perjury and tax

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evasion, after attempting to frame him for putting pornographic

Defendants

Defendants

Defendants employed people to impersonate

United States District Court
For the Northern District of California

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pictures of himself on a web site accessible to minors on

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MySpace.com.

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Defendants hired the John Stewart Company to install a

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surveillance camera in Plaintiff’s unit in the LeNain Hotel and

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solicited the Tides Center, Dish, Shawn Hughes and Does 50 through

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151 to continue the illegal surveillance.

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California Presbyterian Homes also cooperated and assisted in the

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installation of cameras in Plaintiff’s apartment unit.

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Defendant Northern

Based on these allegations, Plaintiff asserts causes of action

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for violation of 42 U.S.C. §§ 1981 through 1983, 1985, 1986 and

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1988.

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conspiracy to defame, violation of government records, conspiracy

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to falsely impersonate Plaintiff, identity theft, negligence,

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intentional infliction of emotional distress, fraud, unlawful

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searches and seizures, and violation of the First, Fourth, Fifth,

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and Eighth Amendments to the United States Constitution.

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seeks a restraining order against Defendants enjoining them from

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reproducing, distributing or showing photographs of Plaintiff and

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He also asserts state law claims of invasion of privacy,

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Plaintiff

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requiring them to return the photographs to him along with his

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medical records.

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damages for each publication.

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He also seeks punitive, exemplary and statutory

Even interpreted liberally, Plaintiff’s allegations do not

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state a claim upon which relief can be granted.

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complaint is dismissed without prejudice to filing as a paid

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complaint.

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Defendants is denied as moot.

Therefore, his

Plaintiff’s motion for an extension of time to serve

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: 10/19/2011
CLAUDIA WILKEN
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH MCINERNEY et al,
Case Number: CV11-03018 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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CITY OF SAN JOSE et al,
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Defendant.
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United States District Court
For the Northern District of California

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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 October 19, 2011, 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.

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Joseph McInerney
60 North Third Street #301
San Jose, CA 95112

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Dated: October 19, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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