1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY GLENN OSBORN, No. 2:23-cv-00362 DJC AC PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNITED STATES, 15 Defendant. 16 17 Plaintiff is proceeding in this action pro se. This matter was referred to the undersigned 18 by E.D. Cal. R. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma 19 pauperis (“IFP”) pursuant to

, and has submitted the affidavit required by that 20 statute. See

(a)(1). The motion to proceed IFP will therefore be granted. 21 I. SCREENING 22 A determination that a plaintiff qualifies financially for in forma pauperis status does not 23 complete the inquiry required by the statute. The federal IFP statute requires federal courts to 24 dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which 25 relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 26

(e)(2). Plaintiff must assist the court in determining whether the complaint is 27 frivolous, by drafting the complaint so that it complies with the Federal Rules of Civil Procedure 28 (“Fed. R. Civ. P.”). Under the Federal Rules of Civil Procedure, the complaint must contain (1) a 1 “short and plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed 2 in this court, rather than in a state court), (2) a short and plain statement showing that plaintiff is 3 entitled to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the 4 relief sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and 5 directly. Fed. R. Civ. P. 8(d)(1). 6 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 7 Neitzke v. Williams,

(1989). In reviewing a complaint under this standard, the 8 court will (1) accept as true all the factual allegations contained in the complaint, unless they are 9 clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the 10 plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke,

; Von 11 Saher v. Norton Simon Museum of Art at Pasadena,

(9th Cir. 2010), cert. 12 denied,

(2011). 13 The court applies the same rules of construction in determining whether the complaint 14 states a claim on which relief can be granted. Erickson v. Pardus,

(2007) (court 15 must accept the allegations as true); Scheuer v. Rhodes,

(1974) (court must 16 construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a 17 less stringent standard than those drafted by lawyers. Haines v. Kerner,

, 520 18 (1972). However, the court need not accept as true conclusory allegations, unreasonable 19 inferences, or unwarranted deductions of fact. Western Mining Council v. Watt,

, 20 624 (9th Cir. 1981). A formulaic recitation of the elements of a cause of action does not suffice 21 to state a claim. Bell Atlantic Corp. v. Twombly,

(2007); Ashcroft v. Iqbal, 22

(2009). To state a claim on which relief may be granted, the plaintiff must 23 allege enough facts “to state a claim to relief that is plausible on its face.” Twombly,

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 25 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 26 Iqbal,

. 27 A pro se litigant is entitled to notice of the deficiencies in the complaint and an 28 opportunity to amend unless the complaint’s deficiencies could not be cured by amendment. See 1 Noll v. Carlson,

(9th Cir. 1987), superseded on other grounds by statute as 2 stated in Lopez v. Smith,

(9th Cir. 2000)) (en banc). 3 II. THE COMPLAINT 4 Plaintiff alleges that on May 8, 2009, he was sexually assaulted during surgery for a 5 blocked artery. ECF No. 1 at 5. The blocked artery was never repaired, plaintiff was chemically 6 castrated, and something was “injected into my chest make them larger.” Id. at 6. Plaintiff 7 alleges his Sixth Amendment rights were violated. Id. at 4. Included in the complaint is a letter 8 from the U.S. Department of Veterans Affairs dated September 9, 2022, stating that plaintiff’s 9 Federal Tort Claims Act (FTCA) claim could not proceed because it was presented more than two 10 years after the claim accrued, in violation of the applicable statute of limitations. Id. at 7. 11 III. ANALYSIS 12 This case must be dismissed because it is time-barred. Plaintiff’s complaint asserts a civil 13 rights violation based on an incident that occurred in 2009. Title

14 provides a cause of action for the deprivation of “rights, privileges, or immunities secured by the 15 Constitution or laws of the United States” against a person acting “under color of any statute, 16 ordinance, regulation, custom, or usage.” Gomez v. Toledo,

(1980). “Section 17 1983 is not itself a source of substantive rights; rather it provides a method for vindicating federal 18 rights elsewhere conferred.” Graham v. Connor,

, 393–394 (1989). To state a claim 19 for relief under Section 1983, a plaintiff must allege that the defendant (1) acted under color of 20 state law; and (2) caused a plaintiff to be deprived of a right secured by the Constitution or laws 21 of the United States. Nurre v. Whitehead,

(9th Cir. 2009). 22 The statute of limitations (the time period in which a plaintiff may sue) for an alleged 23 §1983 violation is two years. Cal. Civ. Pro. § 335; Maldonado v. Harris,

(9th 24 Cir. 2004) (applicable statute of limitations for Section 1983 actions is drawn from forums state’s 25 limitations period for personal injury actions; in California, a two-year limitations period was 26 made effective as of January 1, 2003). A federal civil rights claim “accrues,” and the statute of 27 limitations begins to run, “[w]hen the plaintiff has a complete and present cause of action, that is, 28 when the plaintiff can file suit and obtain relief.” Wallace v. Kato,

(2007) 1 | (noting that while federal courts apply state statutes of limitation, the accrual date of a Section 2 | 1983 cause of action is a question of federal law). Thus, even under a “light most favorable” 3 || reading of plaintiff's complaint, any civil rights violation would have accrued at or around the 4 | time of his surgery in 2009. Plaintiffs complaint, filed 2023, came to this court well beyond the 5 || two-year statute of limitations. Cal. Civ. Pro. § 335; see also, e.g., Rogers v. City of Grover 6 || Beach,

, at *3 (C.D. Cal. Aug. 21, 2020) (dismissing Section 1983 complaint 7 || based on alleged due process violation as beyond California’s two-year statute of limitations, 8 | which “expires two years from the time plaintiff knows or has reason to know of his injury”). 9 || Thus, the complaint must be dismissed with prejudice. 10 ITV. PROSE PLAITNIFF’S SUMMARY 11 It is being recommended that your case be dismissed with prejudice it is based on events 12 || that occurred in 2009; these facts are too old to serve as the basis for a §1983 claim. 13 V. CONCLUSION 14 In accordance with the above, IT IS HEREBY ORDERED that plaintiff's application to 15 || proceed in forma pauperis (ECF No. 2), is GRANTED. 16 Further, IT IS HEREBY RECOMMENDED that all claims against all defendants should 17 || be DISMISSED with prejudice. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of

(b)(1).. Within twenty-one days 20 || after being served with these findings and recommendations, plaintiff may file written objections 21 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 22 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 23 || time may waive the right to appeal the District Court’s order. Martinez v. Ylst,

24 | (9th Cir. 1991). 25 IT IS SO ORDERED. 26 || DATED: April 24, 2023 ~ Cttt0 Lhar—e_ 27 ALLISONCLAIRE. 28 UNITED STATES MAGISTRATE JUDGE