Opinion
Civil No. 12-1297 WQH (RBB)
07-09-2012
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; B. DOMINGUES; C. VILLALOBOS; A. CASTRO; J. FLORES; M. VITELA; ZAMORA, Defendant.
ORDER DISMISSING CIVIL ACTION AS FRIVOLOUS PURSUANT TO 28 U.S.C.
§ 1915A(b)(1) AND DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT
Plaintiff, an inmate currently incarcerated at Kern Valley State Prison located in Delano, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. §1983. In addition, Plaintiff has filed a Motion to Proceed in forma pauperis ("IFP"). (ECF No. 2.)
I. 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 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); Resnick v. Hayes, 213 F.3d 443,446-47 (9th Cir. 2000).
Plaintiff's instant Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because it appears to be duplicative of a case Plaintiff has already filed. Plaintiff's Complaint contains identical claims that are found in Miller v. McEwen, et al, S.D. Cal. Civil Case No. 11cv2333 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." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
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). Because Plaintiff is already litigating the same claims presented in the instant action in Miller v. McEwen, et al, S.D. Cal. Civil Case No. 1 lcv2333 JLS (WVG), the Court hereby DISMISSES Civil Case No. 12cvl297 WQH (RBB) pursuant to 28 U.S.C. § 1915A(b)(l). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.l.
II. Conclusion and Order
Good cause appearing, IT IS HEREBY ORDERED that:
Plaintiffs Complaint in Civil Case No. 12cvl297 WQH (RBB) is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and Plaintiff's Motion to Proceed IFP (ECF No. 2) is DENIED as moot.
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.
IT IS SO ORDERED.
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HON. WILLIAM Q. HAYES
United States District Court