Opinion
No. C 04-115 SI (pr)
April 22, 2004
JUDGMENT
This action is dismissed as frivolous because it repeats the allegations made in another action.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Delaney Barnes, currently in custody at the Santa Rita County Jail in Dublin, CaliforniaI filed this pro se civil rights action under 42 U.S.C. § 1983. In this action, Bames complains that jail staff failed to mail his state habeas petition on November 3, 2002. The events complained of in this action are identical to the events complained of in Barnes v. Santa Rita Jail Inmate Services. No. C 04-145 SI. This action is DISMISSED as frivolous because it repeats claims made in another case. See Bailey v. Johnson 846 F.2d 1019, 1021 (5th Cir. 1988) (duplicative or repetitious litigation of virtually identical causes of action is subject to dismissal under 28 U.S.C. § 1915 as malicious).
The court chooses to dismiss the earlier-filed case (i. e., No. C 04-115 SI) rather than the later-filed case (i. e., No. C 04-145 SI) because the earlier-filed case was more deficient. That is, the complaint in Case No. C 04-115 indicated mat administrative remedies had not been exhausted while the complaint in Case No. C 04-145 indicated mat administrative remedies had been exhausted. Had the court dismissed Case No. C 04-145 as duplicative of Case No. C 04-115, Case No. C 04-115 SI would still have to be dismissed because it affirmatively pled that administrative remedies had not been exhausted. Additionally, a complete in forma pauperis application was only filed in Case No. C 04-145. The in forma pauperis application in Case No. C 04-115 was incomplete and therefore is DENIED. (Docket # 2.)
This action is dismissed as frivolous. The clerk shall close the file.
IT IS SO ORDERED.