Free Order - District Court of California - California

Case 3:08-cv-00429-WQH-RBB

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Filed 04/17/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Plaintiff, a state inmate currently incarcerated at the Richard J. Donovan Correctional SAN DIEGO SHERIFF DEPUTY RUSSELL, et al., Defendants.
vs.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
HARVEY X. ROBINSON, CDCR #T-94046, Plaintiff, ORDER: (1) DISMISSING CIVIL ACTION AS DUPLICATIVE PURSUANT TO 28 U.S.C. § 1915A(b)(1); and
(2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT [Doc. No. 2] Civil No. 08-0429 WQH (RBB)

23 Facility located in San Diego, California and proceeding pro se, has filed a civil rights 24 Complaint pursuant to 42 U.S.C. §1983. Plaintiff has not prepaid the $350 filing fee mandated 25 by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") 26 pursuant to 28 U.S.C. § 1915(a) [Doc. No 2]. 27 //// 28 ////
-108cv0429

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Case 3:08-cv-00429-WQH-RBB

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Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b) The Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A, obligates the Court to

3 review complaints filed by anyone "incarcerated or detained in any facility who is accused of, 4 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions 5 of parole, probation, pretrial release, or diversionary program," "as soon as practicable after 6 docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed IFP. 7 See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any 8 portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may 9 be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). 10 Plaintiff's instant Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C.

11 § 1915A(b)(1) because it appears to be duplicative of a case Plaintiff has already litigated. 12 Plaintiff's Complaint contains identical claims that are found in Robinson v. Kolender, et al., 13 S.D. Cal. Civil Case No. 03cv1715 DMS (JFS).1 A court "may take notice of proceedings in 14 other courts, both within and without the federal judicial system, if those proceedings have a 15 direct relation to matters at issue." United States ex rel. Robinson Rancheria Citizens Council 16 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 17 18 A prisoner's complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103,

19 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal 20 quotations omitted). Because Plaintiff is already litigating the same claims presented in the 21 instant action in Robinson v. Kolender, et al., S.D. Cal. Civil Case No. 03cv1715 DMS (JFS), 22 the Court hereby DISMISSES Civil Case No. 08cv0429 WQH (RBB) pursuant to 28 U.S.C. 23 § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1. 24 //// 25 //// 26 //// 27
1

28 parties for incidents which he alleged occurred on May 13, 2003. See also Robinson v. Kolender, et al,
S.D. Cal. Civil Case No. 03cv2096 W (JFS) filed on December 23, 2003.
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This is the third complaint filed by Plaintiff containing the identical claims against the same

-2-

08cv0429

Case 3:08-cv-00429-WQH-RBB

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Filed 04/17/2008

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Conclusion and Order Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's Complaint in Civil Case No. 08-0429 WQH (RBB) is DISMISSED as

4 frivolous pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff's Motion to Proceed IFP [Doc. No. 2] 5 is DENIED as moot. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-308cv0429

The Clerk shall close the file. IT IS SO ORDERED. DATED: April 17, 2008 WILLIAM Q. HAYES United States District Judge

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