Rigoberto Polanco v. Biter

Filing 5

ORDER DISMISSING ACTION as Duplicative, signed by Magistrate Judge Gary S. Austin on 9/18/2012. CASE CLOSED. (Marrujo, C)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RIGOBERTO POLANCO, 10 11 12 Plaintiff, v. M. D. BITER, 13 Defendant. ) 1:12-cv-01306 GSA PC ) ) ORDER DISMISSING ACTION ) AS DUPLICATIVE ) ) ) ) ) ) 14 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action 17 pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 18 28 U.S.C. § 636(c). 19 The Court is required to screen complaints brought by prisoners seeking relief against a 20 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 21 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 22 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 23 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 24 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 25 dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a 26 claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 27 Plaintiff, an inmate in the custody of the California Department of Corrections and 28 Rehabilitation (CDCR) at Pelican Bay State Prison, brings this action against M.D. Biter and other 1 1 correctional officials employed by the CDCR at Kern Valley State Prison. The incident at issue in 2 this lawsuit is the use of force on Plaintiff on May 5, 2011. Plaintiff makes the exact same allegation 3 in Polanco v. Biter, 1:12 cv 00984 GBC PC, filed on June 19, 2012. This action was filed on August 4 10, 2012. That action challenges the use of force on Plaintiff on May 5, 2011. A review of this 5 complaint reveals that the allegations are identical to the earlier action. 6 7 Accordingly, IT IS HEREBY ORDERED that this action is dismissed, without prejudice, as duplicative of the earlier action. 8 9 10 11 12 13 IT IS SO ORDERED. Dated: 6i0kij September 18, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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