Opinion
Civil No. 12cv1481 BEN (WVG)
10-09-2012
GERALD LEE MILLER CDCR#C-92075, Plaintiff, v. L.S. McEWEN; G.J. JANDA; R. LIZARRAGA; DR. RICHARD KORNBLUTH; PARAMO; H. AMEZCUA; S. HARDMAN; ALVAREZ; T. ALVAREZ; B. DOMINGUES; C. VILLALOBOS; A. CASTRO; J. FLORES; M. VITELA; ZAMORA, Defendants.
ORDER DISMISSING CIVIL
ACTION AS FRIVOLOUS
PURSUANT TO 28 U.S.C.
§ 1915A(b)(l) AND DENYING
MOTION TO PROCEED
IN FORMA PAUPERIS
AS MOOT
(ECF No. 4)
Gerald Lee Miller ("Plaintiff"), currently incarcerated at Kern Valley State Prison located in Delano, California, and proceeding pro se, has filed this action pursuant to 42 U.S.C. § 1983. In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 4).
I. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)
As amended by The Prison Litigation Reform Act, 28 U.S.C. § 1915A obligates the Court to review complaints filed by anyone "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).
Plaintiff's Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because it is duplicative of a Complaint he has already filed in another civil action. Indeed, Plaintiff's Complaint contains identical allegations against the same defendants already brought before and considered by United States District Judge Janis Sammartino in Miller v. McEwen, et al, S.D. Cal. Civil Case No. 1 lcv2333 JLS (WVG). A court "'may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue."' Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).
A prisoner's complaint is considered frivolous under 28 U.S.C. § 1915A(b)(l) if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Thus, because Plaintiff has already filed the same Complaint he has filed in this action in Miller v. McEwen, et al, S.D. Cal. Civil Case No. 11cv2333 JLS (WVG), the Court hereby DISMISSES S.D. Cal. Civil Case No. 12cv1481 BEN (WVG) pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Rhodes, 621 F.3d at 1004.
II. Conclusion and Order
Good cause appearing, IT IS HEREBY ORDERED that:
(1) Plaintiff's Complaint in Civil Case No. 12cvl481 BEN (WVG) is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(l).
(2) Plaintiff's Motion to Proceed IFP (ECF No. 4) is DENIED as moot.
(3) This Court CERTIFIES that no IFP appeal from this Order could be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).
The Clerk shall close the file.
_________________
HON. ROGER T. BENITEZ
United States District Judge