Burton v. California Department of Corrections and Rehabilitation et al

Filing 3

ORDER OF DISMISSAL. Signed by Judge Phyllis J. Hamilton on 11/13/07. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 11/13/2007)

Burton v. California Department of Corrections and Rehabilitation et al

Doc. 3

Case 3:07-cv-05618-PJH

Document 3

Filed 11/13/2007

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants. / KEVIN BURTON, Plaintiff, No. C 07-5618 PJH (PR) ORDER OF DISMISSAL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Standard of Review

Plaintiff, an inmate at the San Diego Central Jail, filed a pro se civil rights complaint under 42 U.S.C. § 1983 in the United States District Court for the Southern District of California. Because the complaint involves events which occurred when plaintiff was housed at Salinas Valley State Prison, which is in this district, the Southern District transferred it here. Plaintiff also requests leave to proceed in forma pauperis. DISCUSSION

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Similarly, the court may dismiss on these grounds a case filed in forma pauperis, whether filed by a prisoner or not. 28 U.S.C. § 1915(e). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Dockets.Justia.com

Case 3:07-cv-05618-PJH

Document 3

Filed 11/13/2007

Page 2 of 2

1 2 3 4 5 6 7 8 9 10

B.

Analysis The complaint in this case is a copy of the complaint plaintiff filed to commence case

number C 07-4967 PJH (PR), a case which previously was transferred here from the Southern District. An in forma pauperis complaint that merely repeats pending or previously litigated claims may be considered abusive and dismissed under the authority of section 1915(e). Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). An in forma pauperis complaint repeating the same factual allegations asserted in an earlier case, as here, even if filed against new defendants, is therefore subject to dismissal as duplicative. See id. The petition therefore will be dismissed. CONCLUSION Leave to proceed in forma pauperis (document 2 on the docket) is DENIED. The complaint is DISMISSED as duplicative. The clerk shall close the file. IT IS SO ORDERED. Dated: November 13, 2007. PHYLLIS J. HAMILTON United States District Judge

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

G:\PRO-SE\PJH\CR.07\BURTON5618.DSM.wpd

2