Grigsby v. Jacquez et al

Filing 8

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 5/8/09. (Attachments: # 1 Certificate of Service)(be, COURT STAFF) (Filed on 5/11/2009)

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 Plaintiff moved for reconsideration and appealed to the Ninth Circuit. But his motion for reconsideration was denied and his appeal was dismissed for failure to prosecute. See Grigsby v. Castellan, No. 07-17359 (9th Cir. Apr. 22, 2008) (order).
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JONATHAN W. GRIGSBY, Plaintiff(s), v. FRANCISCO JACQUEZ, et al., Defendant(s).

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No. C 09-0024 CRB (PR) ORDER OF DISMISSAL

Plaintiff, a prisoner at Pelican Bay State Prison (PBSP) and frequent litigant in federal court, has filed a pro se prisoner complaint under 42 U.S.C. § 1983 alleging that on or about August 1, 2005 prison officials used excessive force against him and denied him medical care for the injuries he sustained. Plaintiff raised the same allegations in a prior prisoner complaint, which was dismissed for failure to exhaust available administrative remedies, as required by 42 U.S.C. § 1997e(a). See Grigsby v. Castellan, No. C 06-5494 CRB (PR) (N.D. Cal. Feb. 26, 2007) (order of dismissal). The dismissal was without prejudice to filing a new action after exhausting California's prison administrative process. See id.1

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Plaintiff's new action is not premised on his having exhausted California's prison administrative process since the court dismissed his first action on February 26, 2007; rather, the new action is premised on his assertion that the court's dismissal of his first action was wrong. This he should have raised on appeal, and not in a new complaint. A prisoner complaint that merely repeats pending or previously litigated claims, as is the case here, may be considered abusive and dismissed under the authority of 28 U.S.C. § 1915A. Cf. Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (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 claims raised herein in Grigsby v. Castellan, No. C 06-5494 CRB (PR), the instant complaint is deemed duplicative and abusive under § 1915A. That plaintiff may have added additional defendants in this later-filed action does not compel a different result. See Bailey, 846 F.2d at 1021 (complaint repeating same allegations asserted in earlier case, even if now filed against new defendants, is subject to dismissal as duplicative). The complaint is DISMISSED as duplicative under the authority of 28 U.S.C. § 1915A(b). The clerk shall enter judgment in accordance with this order and close the file. SO ORDERED. DATED: May 8, 2009 CHARLES R. BREYER United States District Judge

G:\PRO-SE\CRB\CR.09\Grigsby, J1.dismissal.wpd

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