Opinion
No. CIV S-08-1512 KJM P.
July 18, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a), 1915(a).
Nevertheless, the court finds that the instant action is frivolous. In considering whether to dismiss an action as frivolous pursuant to § 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 with the court on July 1, 2008. The court's own records reveal that on September 6, 2007, petitioner filed a petition challenging the same May 5, 2005 disciplinary finding. (See Case No. Civ. S-07-1843 GEB GGH P.) Due to the duplicative nature of the present action, the court finds it frivolous and, therefore, will dismiss the petition. 28 U.S.C. § 1915(d). Petitioner is advised that filing several challenges to the same conviction or disciplinary finding will not cause the issues to be resolved any faster; indeed, his duplicative filings may hamper resolution of his claims as it forces the court to determine what is currently pending.
IT IS THEREFORE ORDERED that this action is dismissed.