Sapp v. Lalor et al

Filing 4

ORDER FOR PLAINTIFF TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 12/8/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 12/8/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 RAMON J. SAPP, Plaintiff, 8 9 11 For the Northern District of California United States District Court 10 12 No. C 11-5120 PJH (PR) vs. ORDER FOR PLAINTIFF TO SHOW CAUSE M. LALOR, B. WOO, K. EDISON, V. ETCHEBER, D. NASTARI, C. FABRI, T. BOES, B. PEAGLER, Inspector HOLLORAN, P. BERMUEZ, L. LARGAREJOS, V. JACKSON, and JOHN DOES, 13 Defendants. 14 / 15 Plaintiff, a prisoner at San Quentin State Prison, has filed a pro se civil rights 16 complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma 17 pauperis. Plaintiff contends that defendants, all law enforcement officers, conspired to kill 18 him. They encountered him at a gas station in Oakland, where he says they fired on him, 19 “shooting him down.” He asserts that defendants stood over him firing, although he was 20 lying on the ground and unarmed. He says that he was shot approximately forty times, and 21 lost his left leg as a result. 22 Plaintiff had a previous lawsuit in this court involving the medical care he received 23 after the shooting. It was settled and judgments dismissing the claims with prejudice were 24 entered. See Sapp v. County of Alameda, No. C 03-1066 PJH (Aug. 29, 2006; Dec. 21, 25 2006). The complaint in that case, as well as the opinion of the California Court of Appeal 26 in the direct appeal of plaintiff’s conviction, show that his apprehension and the shooting 27 about which he complains occurred in 2002. See id., Compl. at 12-13; People v. Sapp, No. 28 A113730, 2007 WL 2181900 at *1. 1 The statute of limitations applicable to the present claim probably is four years, see 2 Cal. Civ. Proc. Code § 335.1 (residual limitations period is two years); Cal. Civ. Proc. Code 3 § 352.1(a) (tolling of up to two years for disability of imprisonment), and the claim probably 4 accrued when plaintiff was shot, see TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 5 1999) (claim generally accrues when plaintiff knows or has reason to know of injury that is 6 basis of action). It thus appears from judicially noticeable facts that this complaint may be 7 barred by the statute of limitations. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 8 2007) (federal district courts may "take [judicial] notice of proceedings in other courts, both 9 within and without the federal judiciary system, if those proceedings have a direct relation 11 For the Northern District of California United States District Court 10 to matters at issue."). Plaintiff shall show cause within thirty days of the date this order is entered why the 12 case should not be dismissed as barred by the statute of limitations. If he does not 13 respond, or if he is unable to show that the complaint is not barred, the case will be 14 dismissed with prejudice. 15 16 IT IS SO ORDERED. Dated: December 8, 2011. PHYLLIS J. HAMILTON United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\PJH\CR.11\SAPP5120.OSC-P.wpd 2

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