McCray v. Rodriguez

Filing 3

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 10/26/06. (Attachments: # 1 Ceertificate of Service)(be, COURT STAFF) (Filed on 10/26/2006)

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McCray v. Rodriguez Doc. 3 Case 3:06-cv-06565-CRB Document 3 Filed 10/26/2006 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. J. RODRIGUEZ, Defendant(s). KIMOTHY R. McCRAY, Plaintiff(s), ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 06-6565 CRB (PR) ORDER OF DISMISSAL Plaintiff, a prisoner at Kern Valley State Prison, has filed his third prisoner complaint under 42 U.S.C. 1983 alleging that superior court deputy clerk J. Rodriguez unlawfully interfered with his right to file in state superior court. Plaintiff first raised these allegations in a prisoner complaint which was dismissed on the merits under the authority of 28 U.S.C. 1915A(b) on August 18, 2006. See McCray v. Rodriguez, No. C 06-4805 CRB (PR) (N.D. Cal. Aug. 18, 2006) (order of dismissal). He again raised the same allegations in a second prisoner complaint which was dismissed on September 7, 2006. See McCray v. Rodriguez, No. C 06-5367 CRB (PR) (N.D. Cal. Sept. 7, 2006) (order of dismissal). And a third time when he filed the instant action in the Central District of California. The action was transferred to this court. A prisoner complaint that merely repeats pending or previously litigated claims may be considered abusive and dismissed under the authority of 28 U.S.C. 1915A(b). Cf. Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) Dockets.Justia.com Case 3:06-cv-06565-CRB Document 3 Filed 10/26/2006 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)) (duplicative in forma pauperis complaint may be considered abusive and dismissed under 28 U.S.C. 1915). Because plaintiff raised and litigated the same allegations and claim raised herein in two prior prisoner complaints, the instant complaint is deemed duplicative and abusive under 1915A. Nothing plaintiff adds in this third attempt to litigate the same claim compels a different result. Plaintiff's request to proceed in forma pauperis is DENIED and the complaint is DISMISSED under the authority of 28 U.S.C. 1915A(b). The clerk shall enter judgment in accordance with this order and close the file. No fee is due. SO ORDERED. DATED: October 26, 2006 CHARLES R. BREYER United States District Judge 2

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