Opinion
No. CIV S-11-3126 MCE GGH PS
01-06-2012
KENNETH SMITH, Plaintiff, v. SACRAMENTO MAIN JAIL, et al., Defendants.
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302(c)(21).
Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).
Plaintiff's complaint was filed with the court on November 23, 2011. The court's own records reveal that on November 22, 2011, plaintiff filed a complaint containing virtually identical allegations against the same defendant, and has now added an additional defendant, Rio Cosumnes Correctional Center. (No. Civ. S-11-3110 GEB GGH PS). The Judge Burrell case has been dismissed with leave to amend for failure to state a cognizable (even recognizable) claim. The current allegations are that defendants did not follow a court order, issued in April, 1999, regarding an HIV blood test. The complaint also alleges that plaintiff received no medical services while he was in custody at the Main Jail. Further alleged is that the Sheriff falsified charges against plaintiff on August 13, 2000. Due to the duplicative nature of the present action, the court will recommend that the complaint be dismissed.
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).
In accordance with the above, IT IS HEREBY ORDERED that: plaintiff's request for leave to proceed in forma pauperis is granted.
IT IS HEREBY 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 fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff 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).
Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076/Smith3126.23.wpd