Free Order - District Court of California - California

Case 3:07-cv-02434-JM-NLS

Document 4

Filed 02/25/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
Plaintiff, a state inmate currently incarcerated at the California Institution for Men located in vs. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DIEGO H. LA MADRID, CDCR #P-98764, Plaintiff,

Civil No. ORDER:

07-2434 JM (NLS)

(1) DISMISSING CIVIL ACTION AS DUPLICATIVE PURSUANT TO 28 U.S.C. § 1915A(b)(1); and (2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND MOTION TO APPOINT COUNSEL AS MOOT [Doc. Nos. 2, 3]
Defendant.

CALIFORNIA DEP'T OF CORRECTIONS; et al.,

21 Chino, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. 22 §1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he has 23 filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No 2]. 24 25 I. 26
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 review

27 complaints filed by anyone "incarcerated or detained in any facility who is accused of, sentenced for, 28 or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation,
-107cv2434

K:\COMMON\CHMB_MIL\__SIGNED ORDERS\2 25 2008\07cv2434_duplicative_2 25 2008.wpd.25Feb08

Case 3:07-cv-02434-JM-NLS

Document 4

Filed 02/25/2008

Page 2 of 2

1 pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of 2 whether the prisoner prepays filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). The 3 Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, 4 malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. 5 Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). 6
Plaintiff's instant Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C.

7 § 1915A(b)(1) because it appears to be duplicative of a case Plaintiff is already litigating. Plaintiff's 8 Complaint contains identical claims that are found in La Madrid v. Hernandez, S.D. Cal. Civil Case No. 9 07-1997 JM (JMA). A court "may take notice of proceedings in other courts, both within and without 10 the federal judicial system, if those proceedings have a direct relation to matters at issue." United States 11 ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 12 13
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, 1105 n.2 (9th Cir.

14 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Because 15 Plaintiff has already litigated the same claims presented in the instant action in La Madrid v. Hernandez, 16 S.D. Cal. Civil Case No. 07-1997 JM (JMA), the Court hereby DISMISSES Civil Case No. 07-2434 17 JM (NLS) pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 18 446 n.1. 19 II. 20 21
Conclusion and Order Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's Complaint in Civil Case No.07-2434 JM (NLS) is DISMISSED as frivolous pursuant

22 to 28 U.S.C. § 1915A(b)(1). Plaintiff's Motion to Proceed IFP [Doc. No. 2] and Motion to Appoint 23 Counsel are DENIED as moot. 24 25
The Clerk shall close the file. IT IS SO ORDERED.

26 DATED: February 25, 2008 27 28
Hon. Jeffrey T. Miller United States District Judge -2-

K:\COMMON\CHMB_MIL\__SIGNED ORDERS\2 25 2008\07cv2434_duplicative_2 25 2008.wpd.25Feb08

07cv2434