Opinion
No. C 04-4062 CW, (Docket no. 4).
April 27, 2005
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING ACTION WITH PREJUDICE
Plaintiff Jerome Grimes, a pro se litigant, has filed this civil action in which he seeks leave to proceed in forma pauperis. A plaintiff is permitted to file a civil action in federal court without prepayment of fees or security if he makes affidavit that he is unable to pay such fees or give security therefor. See 28 U.S.C. § 1915(a). If in forma pauperis status is granted, the court shall dismiss the case at any time if the court determines that: (a) the allegation of poverty is untrue; or (b) the action is frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. Id. § 1915(e)(2).
Based on the assertions in Plaintiff's affidavit, he is entitled to proceed in forma pauperis. Accordingly, the request to proceed in forma pauperis is GRANTED. The case is subject to dismissal, however, because the allegations in Plaintiff's first and second complaints and other pleadings filed in this action are duplicative of those filed in prior actions.
Plaintiff alleges that Defendant Nathan Johnson, a former member of the San Francisco Police Department, attempted to murder him on October 31, 1985. In his pleadings he lists a number of other incidents of police or government misconduct spanning the past two decades, but the only alleged misconduct by Defendant is the 1985 attack. Plaintiff raised this identical claim in a prior civil rights action, Grimes v. Johnson, C 01-2647 CW, in which the Court found the claim timebarred and duplicative of that raised in an earlier action filed in the Northern District, Grimes v. Johnson, C 86-5203 CW. The Court granted Plaintiff leave to amend to show that the claim was not time-barred or barred by the doctrine of res judicata. The Court also directed Plaintiff to pay the full filing fee. When Plaintiff informed the Court that he was unable to pay the filing fee, the Court dismissed the complaint without prejudice. The Court told Plaintiff that he should file a new action raising the same claim in the future "only if he can in good faith allege facts demonstrating that the action is timely filed and is not barred by res judicata, as the Court explained in its last Order." See Grimes v. Johnson, C 01-2647 CW, Order Dismissing Complaint Without Prejudice at 1.
Although identified in the Court's prior Order as case number C 86-5203 CW, the correct case number is C 86-5203 JPV.
The allegations in the present action are identical to those in Plaintiff's two prior actions. Contrary to the Court's earlier admonition, Plaintiff has not alleged facts demonstrating that the action is timely filed and not barred by res judicata. Duplicative or repetitious litigation of virtually identical causes of action is subject to dismissal under 28 U.S.C. § 1915 as malicious. Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or previously litigated claims may be considered abusive and dismissed under § 1915. Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995); Bailey, 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975).
For these reasons, this action is DISMISSED WITH PREJUDICE under § 1915(e)(2). The Clerk of Court shall enter judgment and close the file.
This action was filed as a Category 550 (prisoner civil rights action). Because Plaintiff was not incarcerated when he filed this action, however, the Clerk of Court shall redesignate it as a Category 440 (civil rights — other) on the case docket.
IT IS SO ORDERED.