Gordon v. Fulton Diagnostic Center et al

Filing 5

REPORT AND RECOMMENDATION that 2 MOTION for leave to proceed in forma pauperis filed by Christopher Gordon be denied and 1 Complaint filed by Christopher Gordon be dismissed, pursuant to 28 U.S.C. 1915. Objections to R&R due by 10/27/2008. Signed by Magistrate Judge William A. Knox on 10/7/2008. (Bode, Kay)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

CHRISTOPHER GORDON, Plaintiff, v. F ULTON DIAGNOSTIC CENTER, et al., Defendants.

) ) ) ) ) ) ) ) )

No. 08-4233-CV-C-SOW

REPORT AND RECOMMENDATION Plaintiff Christopher Gordon, an inmate confined at Fulton State Hospital, a Missouri institution, brought this case under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its cor r esponding jurisdictional statute, 28 U.S.C. § 1343. 1 Named defendant is the nursing staff at Fulton Diagnostic Center. Plaintiff alleges that while at the Fulton Reception and Diagnostic Center, he received a " lazer [sic] implant." Plaintiff states he has been "mentally and physically held by electronics of some kind," and seeks for this court to "help him as much as possible." Plaintiff has requested leave to proceed without paying the filing fee, pursuant to 28 U. S. C. § 1915. Under section 1915, the court may waive filing fees and costs if it finds a plaintiff is indigent and if the claim should not be dismissed on certain other enumerated gr ounds. If appropriate, the court may impose a partial filing fee under L.R. 83.7. In re Williamson, 786 F.2d 1336 (8th Cir. 1986). Plaintiff's affidavit indicates that he is indigent and currently unable to pay the full filing fee. Nevertheless, when a plaintiff seeks leave to proceed without prepayment of the filing fee, the court must dismiss the case if it finds the claim to be frivolous or malicious, if it fails to state a claim for which relief may be granted, or if it seeks monetary relief against a

This case was referred to the undersigned United States Magistrate Judge for pr ocessing in accord with the Magistrate Act, 28 U.S.C. § 636, and L.R. 72.1.

1

defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2). The term "frivolous," as used in the statute, does not necessarily imply the plaintiff' s claims are unimportant, but may mean only that the federal court lacks the authority to address them. Case law indicates that where a plaintiff seeks leave to proceed under section 1915, a claim should be dismissed if it "lacks an arguable basis either in law or fact" or is based on an " indisputably meritless legal theory." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989). The statute has been interpreted to give the court "the unusual power to pierce the veil of the complaint' s factual allegations and dismiss those claims whose factual contentions are clearly baseless. " Id. at 327. Baseless factual contentions are those that are "fanciful," "fantastic" or " wholly incredible." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citation omitted). Upon review, this court finds plaintiff's claims alleging a laser implant and being mentally and physically held by electronics to be fanciful claims. Therefore, such claims should be dismissed under section 1915 as frivolous. IT IS, THEREFORE, RECOMMENDED that plaintiff's motion for leave to proceed in for ma pauperis be denied and his claims be dismissed as frivolous, pursuant to 28 U.S.C. § 1915. [2] Under 28 U.S.C. § 636(b)(l), the parties may make specific written exceptions to this r ecommendation within twenty days. The District Judge will consider only exceptions to the specific proposed findings and recommendations of this report. Exceptions should not include matters outside of the report and recommendation. Other matters should be addressed in a separ ate pleading for consideration by the Magistrate Judge. The statute provides for exceptions to be filed within ten days of the service of the r epor t and recommendation. The court has extended that time to twenty days, and thus, additional time to file exceptions will not be granted unless there are exceptional cir cumstances. Failure to make specific written exceptions to this report and recommendation will result in a waiver of the right to appeal. See L.R. 74.1(a)(2).

2

Dated this 7th day of October, 2008, at Jefferson City, Missouri.

/ s/

William A. Knox

WILLIAM A. KNOX United States Magistrate Judge

3