Marks v. Frauenheim

Filing 5

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/17/2015 ORDERING the Clerk to assign a district judge to this action; AND RECOMMENDING that this action be dismissed without prejudice. Assigned and referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL MARKS,

12
13
14
15

No. 2:15-cv-0803 CKD P

Petitioner,
v.

ORDER AND

SCOTT FRAUENHEIM,

FINDINGS AND RECOMMENDATIONS

Respondent.

16
17
18
19

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

20

the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See

21

28 U.S.C. § 1915(a). The court must now determine if the action is frivolous or malicious.

22

In considering whether to dismiss an action as frivolous pursuant to § 1915(d), the court

23

has especially broad discretion. Conway v. Fugge, 439 F.2d 1397 (9th Cir. 1971). The Ninth

24

Circuit has held that an action is frivolous if it lacks arguable substance in law and fact. Franklin

25

v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court’s determination of whether a

26

complaint or claim is frivolous is based on “‘an assessment of the substance of the claim

27

presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted

28

wrong, however inartfully pleaded.’” Franklin, 745 F.2d at 1227 (citations omitted).
1

1

Petitioner’s petition was filed with the court on April 14, 2015. The court’s own records

2

reveal that on April 13, 2015, petitioner filed a petition containing virtually identical allegations

3

against the same respondent. (2:15-cv-0665 DAD P).1 Due to the duplicative nature of the

4

present action, the court finds it frivolous and, therefore, will recommend dismissal of the

5

petition. 28 U.S.C. § 1915(d).

6
7

Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district judge to
this action.

8
9

IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See
Fed. R. Civ. P. 41(b).

10

These findings and recommendations are submitted to the District Judge assigned to this

11

case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served

12

with these findings and recommendations, petitioner may file written objections with the court.

13

The document should be captioned “Objections to Magistrate Judge’s Findings and

14

Recommendations.” Petitioner is advised that failure to file objections within the specified time

15

may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

16

Cir. 1991).

17

Dated: April 17, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24

2/mp; mark0803.123

25
26
27
28

1

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).
2