Opinion
22-cv-00975-JST
06-03-2022
KEVIN PRASAD, Plaintiff, v. COUNTY OF SAN MATEO, et al., Defendants.
ORDER DENYING WITHOUT PREJUDICE REQUEST FOR RECONSIDERATION AND REQUEST TO REOPEN; DIRECTIONS TO CLERK
RE: ECF NO. 8
JON S. TIGAR, UNITED STATES DISTRICT JUDGE
On or about February 17, 2022, Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. ECF No. 1. That same day, the Clerk of the Court informed Plaintiff that this action was deficient because Plaintiff had not paid the filing fee or filed an application to proceed in forma pauperis. ECF No. 5. Plaintiff was instructed to respond within twenty-eight days of the date of this order. Id. Plaintiff did not respond to this notice. On May 26, 2022, the Court dismissed this action for failure to file an in forma pauperis application without prejudice to filing a motion to reopen the action accompanied by either the filing fee or an in forma pauperis application on the proper form with the required supporting documents. ECF No. 6. The Court entered judgment in favor of Defendants and against Plaintiff on the same day. ECF No. 7.
Now pending before the Court is Plaintiff's request that the Court reopen this action because he never received ECF No. 5 and has been unable to obtain an updated version of the in forma pauperis application. Plaintiff states that he assumed that the Court never received his original complaint and therefore filed another complaint with similar allegations, which was given the case number C No. 4:22-cv-02720 JST. Plaintiff requests that the Court reconsider its dismissal of this action and reopen this action. ECF No. 8. The Court DENIES this request to reconsider the dismissal and reopen this action because it is not accompanied by an in forma pauperis application on the proper form with the required supporting documents. This denial is without prejudice to Plaintiff re-filing a motion to reopen accompanied by an in forma pauperis application on the proper form with the required supporting documents. The Clerk is directed to send Plaintiff two copies of the Court's in forma pauperis application.
The Court may not apply Plaintiff's in forma pauperis applications filed in other cases in this action. To obtain leave to proceed in forma pauperis in this action, Plaintiff must file an application in this action.
In any renewed motion to reopen, Plaintiff must address whether this action, C No. 22-cv-02720 JST, is duplicative of C No. 22-cv-00975. 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 Section 1915. Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); Bailey, 846 F.2d at 1021. An in forma pauperis complaint repeating the same factual allegations asserted in an earlier case, even if now filed against new defendants, therefore is subject to dismissal as duplicative. Bailey, 846 F.2d at 1021. If C No. 22-cv-02720 JST is duplicative of C No. 22-cv-00975, Plaintiff should identify which action he seeks to maintain and dismiss the other one.
This order terminates ECF No. 8.
IT IS SO ORDERED.