Elliott v. San Francisco Board of Supervisors et al

Filing 19

ORDER DISMISSING CASE. The Motion for Summary Judgment is DISMISSED AS MOOT. All scheduled dates and deadlines are VACATED. Signed by Judge Saundra Brown Armstong, on 9/16/09. (lrc, COURT STAFF) (Filed on 9/17/2009) Modified on 9/18/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 VANCE C. ELLIOT, 7 8 vs. Plaintiff, Case No: C 09-1397 SBA ORDER DISMISSING CASE PURSUANT TO 28 U.S.C. § 1915(e)(2) UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

9 THE SAN FRANCISCO BOARD OF SUPERVISORS, 10 Defendant. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. The parties are presently before the Court on Defendant's Motion for Summary Judgment. [Docket No. 18]. Having read and considered the papers submitted for the present motion and those previously submitted in this case, the Court resolves the matter without oral argument and hereby DENIES the motion as MOOT and DISMISSES the action pursuant to 28 U.S.C. § 1915(e)(2). I. BACKGROUND Plaintiff filed the present action on March 24, 2009. He claims that a policy enacted by the City of San Francisco, the Uniform Visitor Policy, violates his constitutional rights under the Fourteenth Amendment. The essence of his complaint is that the Policy restricts his right to have visitors at times of his own choosing. On August 31, 2009, Plaintiff filed the present Motion for Summary Judgment. LEGAL STANDARD Under 28 U.S.C. § 1915(e)(2), federal courts are authorized to review claims filed IFP prior to service and to dismiss the case at any time if the court determines that: (1) the allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) the action fails to state a claim; or (4) the action seeks monetary relief from a defendant who is immune from such relief. A pleading

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filed by a pro se plaintiff must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). III. DISCUSSION Here, the Court finds that Plaintiff's action is frivolous. On March 26, 2009, this Court issued an Order and Final Judgment in case # 08-2352 SBA. In that case, Plaintiff brought forth an identical claim against the San Francisco Rent Stabilization and Arbitration Board for a violation of his constitutional rights under the 14th Amendment as a result of the same Uniform Visitor Policy. The case was dismissed on a 12(b)(6) motion without leave to amend because Plaintiff lacked standing within the meaning of Article III. The only difference between that case and the present one is that in addition to the San Francisco Rent Stabilization and Arbitration Board, the Plaintiff has added the San Francisco Board of Supervisors as a named Defendant. There can be no argument that the present case is virtually identical to the previous case adjudicated before this Court. At issue is the same claim, the alleged unconstitutionality of the San Francisco Policy, and the same parties are involved with the exception of the addition of the San Francisco Board of Supervisors. As such, the Court finds the present case frivolous. See Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir.1995) (no abuse of discretion in dismissing action as frivolous under 28 U.S.C. § 1915 where complaint "merely repeats pending or previously litigated claims"). IV. CONCLUSION The Court DENIES the current motion for Summary Judgment as MOOT and DISMISSES the action pursuant to 28 U.S.C. § 1915(e)(2). The Clerk shall vacate all scheduled dates and deadlines and close the file.

SO ORDERED.

Dated: 9/16/09

____________________________ Hon. Saundra Brown Armstrong United States District Judge
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ELLIOTT et al, Plaintiff, v. SAN FRANCISCO BOARD OF SUPERVISORS et al, Defendant. / Case Number: CV09-01397 SBA CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 17, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Vance S. Elliott 74 Sixth Street, #226 San Francisco, CA 94103-1608 Dated: September 17, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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