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McMillian v. Dewell

May 10, 2006

HERMAN CARLEE MCMILLIAN, PLAINTIFF,
v.
JAY VICKERS DEWELL, M.D. AND ALICE HYDE MEDICAL CENTER, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. Mcavoy, Senior United States District Judge

DECISION AND ORDER

I. BACKGROUND

The Clerk of the Court has sent Plaintiff Herman Carlee McMillian's pro se complaint, together with an application to proceed in forma pauperis to the Court for its review. Dkt. Nos. 1, 2.*fn2

In his pro se complaint, Plaintiff claims that he sustained injury and damages as a result of a surgical procedure performed by Dr. Dewell at Alice Hyde Medical Center in 2000. Dkt. No. 1 at 4-6. At the time of the surgery, it appears that plaintiff was incarcerated at Clinton Correctional Facility. Id.

II. DISCUSSION

Consideration of whether the court should permit a pro se plaintiff to proceed in forma pauperis is a two-step process. First, the court must determine whether the plaintiff may proceed with the action without prepaying, in full, the statutory filing fee. The court must then consider whether the causes of action that the plaintiff has set forth in his complaint are, among other things, frivolous or malicious or if they fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).

A. Plaintiff's in forma pauperis application

The Court finds that plaintiff has satisfied the first test since his affidavit sets forth sufficient economic need. See Dkt. No. 2.

B. Allegations in Plaintiff's complaint

The Court must now consider whether it should dismiss this case pursuant to 28 U.S.C. § 1915(e), which directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) 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." 28 U.S.C. § 1915(e)(2)(B). Thus, the court has a responsibility to determine that a complaint may be properly maintained in this district before it may permit a plaintiff to proceed with an action in forma pauperis. See id.

In light of Plaintiff's pro se status, the Court has examined his complaint carefully to determine whether a basis exists for this Court to exercise jurisdiction over his claims. For the reasons that follow, the Court dismisses plaintiff's complaint as frivolous and for failure to state a claim upon which relief may be granted.

1. Statute of limitations

In his a complaint, plaintiff's claims against the defendants relate to conduct which purportedly occurred in 2000. Plaintiff filed this action on or about January 9, 2006. Dkt. No. 1 at 11. Since the applicable statute of limitations for ยง 1983 actions arising in New York requires that a plaintiff bring his claims within three years, see Pinaud v. County of Suffolk, 52 F.3d 1139, ...


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