Opinion
1:12-cv-01306 GSA PC
09-18-2012
RIGOBERTO POLANCO, Plaintiff, v. M. D. BITER, Defendant.
ORDER DISMISSING ACTION
AS DUPLICATIVE
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Pelican Bay State Prison, brings this action against M.D. Biter and other correctional officials employed by the CDCR at Kern Valley State Prison. The incident at issue in this lawsuit is the use of force on Plaintiff on May 5, 2011. Plaintiff makes the exact same allegation in Polanco v. Biter, 1:12 cv 00984 GBC PC, filed on June 19, 2012. This action was filed on August 10, 2012. That action challenges the use of force on Plaintiff on May 5, 2011. A review of this complaint reveals that the allegations are identical to the earlier action.
Accordingly, IT IS HEREBY ORDERED that this action is dismissed, without prejudice, as duplicative of the earlier action.
IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE