Opinion
No. CIV S-05-1154 FCD KJM P.
December 7, 2005
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a pretrial detainee proceeding pro se, has filed an application for a writ of habeas corpus under 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted.See 28 U.S.C. § 1915(a). The court must next determine whether the action is frivolous or malicious before directing any further proceedings.
In considering whether to dismiss an action as frivolous under § 1915(d), the court has especially broad discretion. Conway v. Fugge, 439 F.2d 1397 (9th Cir. 1971). The Ninth Circuit has held that an action is frivolous if it lacks arguable substance in law and fact. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court's determination of whether a complaint or claim is frivolous is based on "`an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded.'" Franklin, 745 F.2d at 1227 (citations omitted).
Petitioner's petition was filed in this district on June 10, 2005, after having been transferred from the Northern District of California. The court's own records reveal that on May 31, 2005, petitioner filed a petition containing virtually identical allegations against the same respondents. (No. Civ. S-05-1078 FCD KJM P.) Due to the duplicative nature of the present action, and petitioner's failure to file a motion to voluntarily dismiss one of the actions, the court finds this action frivolous and, therefore, will recommend dismissal of this petition. 28 U.S.C. § 1915(d).
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986);United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
IT IS HEREBY ORDERED that plaintiff's request for leave to proceed in forma pauperis is granted
IT IS RECOMMENDED that this action be dismissed without prejudice. See Fed.R.Civ.P. 41(b).
These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).