Herrera v. Davey
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 09/17/14 ordering the motion to proceed in forma pauperis 5 is granted. This action is dismissed without prejudice. The clerk of court shall close this case. CASE CLOSED. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERTO HERRERA,
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Petitioner,
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No. 2:14-cv-1810 CKD P
v.
ORDER
D. DAVEY,
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Respondent.
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
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Petitioner has consented to this court’s jurisdiction pursuant to 28 U.S.C. § 636(c) and Local Rule
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302.
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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford
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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See
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28 U.S.C. § 1915(a). The court must now determine if the action is frivolous or malicious.
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In considering whether to dismiss an action as frivolous pursuant to § 1915(d), the court
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has especially broad discretion. Conway v. Fugge, 439 F.2d 1397 (9th Cir. 1971). The Ninth
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Circuit has held that an action is frivolous if it lacks arguable substance in law and fact. Franklin
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v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court’s determination of whether a
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complaint or claim is frivolous is based on “‘an assessment of the substance of the claim
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presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted
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wrong, however inartfully pleaded.’” Franklin, 745 F.2d at 1227 (citations omitted).
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Petitioner’s petition was filed with the court on July 31, 2014. In it, he challenges a
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criminal conviction in the Lassen County Superior Court for possession of a prison-made weapon
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and battery on a non-inmate. Petitioner’s allegations concern both the criminal and prison
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disciplinary proceedings on these charges. (ECF No. 1.) As set forth below, both are the subject
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of pending federal habeas actions in this district.
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Court records reveal that on December 10, 2012, petitioner filed a petition challenging the
prison disciplinary conviction for possession of a weapon and battery on staff that underlies the
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criminal conviction challenged in the instant case. Herrera v. Gipson, No. 2:12-cv-2982 TLN
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DAD P (“Gipson I”). 1 Respondent’s motion to dismiss the petition in that action is pending. See
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Gipson I, ECF No. 22 at 2, n.1.
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Court records further reveal that on February 27, 2012, petitioner filed a petition
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challenging the same criminal conviction as in the instant case. Herrera v. Gipson, No. 2:12-cv-
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0508 KJM DAD P (“Gipson II”). An evidentiary hearing has been set on petitioner’s claim in
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that action. (Gipson II, ECF Nos. 60, 78.)
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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).
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IT IS HEREBY ORDERED that:
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1. The motion to proceed in forma pauperis (ECF No. 5) is granted.
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2. This action is dismissed without prejudice. See Fed. R. Civ. P. 41(b).
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3. The Clerk of Court shall close this case.
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Dated: September 17, 2014
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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2 / herr1810.123
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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).
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