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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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RIGOBERTO POLANCO,

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Plaintiff,
v.
M. D. BITER,

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Defendant.

) 1:12-cv-01306 GSA PC
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) ORDER DISMISSING ACTION
) AS DUPLICATIVE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to

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28 U.S.C. § 636(c).

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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Plaintiff, an inmate in the custody of the California Department of Corrections and

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Rehabilitation (CDCR) at Pelican Bay State Prison, brings this action against M.D. Biter and other
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correctional officials employed by the CDCR at Kern Valley State Prison. The incident at issue in

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this lawsuit is the use of force on Plaintiff on May 5, 2011. Plaintiff makes the exact same allegation

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in Polanco v. Biter, 1:12 cv 00984 GBC PC, filed on June 19, 2012. This action was filed on August

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10, 2012. That action challenges the use of force on Plaintiff on May 5, 2011. A review of this

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complaint reveals that the allegations are identical to the earlier action.

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed, without prejudice, as
duplicative of the earlier action.

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IT IS SO ORDERED.
Dated:
6i0kij

September 18, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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