Gibbs v. Shasta County

Filing 3

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/25/2016 ORDERING a district judge be assigned to this case. IT IS RECOMMENDED that this action be dismissed without prejudice. Assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT ALAN GIBBS,

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No. 2:16-cv-1958 GGH P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

SHASTA COUNTY,
Respondent.

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Petitioner, a Shasta County inmate proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has neither paid the filing fee nor

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submitted an application to proceed in forma pauperis.

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The court must now determine if the action is frivolous or malicious. In considering

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whether to dismiss an action as frivolous pursuant to § 1915(d), the court has especially broad

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discretion. Conway v. Fugge, 439 F.2d 1397 (9th Cir. 1971). The Ninth Circuit has held that an

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action is frivolous if it lacks arguable substance in law and fact. Franklin v. Murphy, 745 F.2d

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1221, 1227-28 (9th Cir. 1984). The court’s determination of whether a complaint or claim is

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frivolous is based on “‘an assessment of the substance of the claim presented, i.e., is there a

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factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully

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

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Petitioner’s petition was filed with the court on August 18, 2016. The court’s own records
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reveal that on August 8, 2016, petitioner filed a petition containing virtually identical allegations

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against the same respondent. (2:16-cv-1869 JAM KJN).1 Due to the duplicative nature of the

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present action, the court finds it frivolous and, therefore, will dismiss the petition. 28 U.S.C. §

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1915(d).

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Accordingly, IT IS ORDERED that a district judge be assigned to this case.

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IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See

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Fed. R. Civ. P. 41(b).

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These findings and recommendations are submitted to the District Judge assigned to this
case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served

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

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

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

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

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Cir. 1991).

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DATED: August 25, 2016

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076/gibb1958.123

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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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