Grimes v. Barber et al

Filing 12

ORDER GRANTING APPLICATION TO PROCEED IFP AND DISMISSING COMPLAINT. Signed by Judge Claudia Wilken on 11/29/2011. (ndr, COURT STAFF) (Filed on 11/29/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JEROME L. GRIMES,

No. 11-03120 CW

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Plaintiff,

ORDER GRANTING
APPLICATION TO
PROCEED IFP AND
DISMISSING
COMPLAINT

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v.
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OFFICER BARBER, et al.,
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Defendants.
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United States District Court
For the Northern District of California

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Plaintiff Jerome L. Grimes applies for leave to proceed in

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forma pauperis (IFP).

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Having considered all of the papers filed by Plaintiff, the Court

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GRANTS the application to proceed IFP and dismisses the complaint.

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The matter was decided on the papers.

DISCUSSION
A court may authorize a plaintiff to prosecute an action in

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federal court without prepayment of fees or security if the

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plaintiff submits an affidavit showing that he or she is unable to

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pay such fees or provide such security.

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Plaintiff has submitted the required documentation, and it is

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evident from his application that his assets and income are

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insufficient to enable him to prosecute the action.

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his application to proceed without the payment of the filing fee is

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GRANTED.

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See 28 U.S.C. § 1915(a).

Accordingly,

The Court’s grant of Plaintiff's application to proceed IFP,

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however, does not mean that he may continue to prosecute his

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complaint.

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filed without the payment of the filing fee whenever it determines

A court is under a continuing duty to dismiss a case

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that the action “(i) is frivolous or malicious; (ii) fails to state

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a claim on which relief may be granted; or (iii) seeks monetary

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relief against a defendant who is immune from such relief."

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U.S.C. § 1915(e)(2)(B)(i)-(iii).

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§ 1915(e)(2)(B) is not a dismissal on the merits, but rather an

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exercise of the court's discretion under the IFP statute, the

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dismissal does not prejudice the filing of a paid complaint making

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the same allegations.

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Because a dismissal pursuant to

Denton v. Hernandez, 504 U.S. 25, 32 (1992).

This case arises from events that were the subject of one of

United States District Court
For the Northern District of California

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Plaintiff’s previous cases, Grimes v. Barber, et al., C 09-0411 CW.

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In C 09-0411 CW, Plaintiff alleged that he was injured in

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connection with a jay-walking incident on the San Francisco State

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University campus by the same Defendants that are named in the

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instant complaint.

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was held in C 09-0411 CW before Magistrate Judge Elizabeth Laporte

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and the parties agreed to a settlement.

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48).

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of dismissal which indicated that if, within ninety days, any party

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certified to the Court that the agreed amount of consideration had

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not been delivered, the order would be vacated and the case would

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be set for trial.

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2009, Plaintiff filed a motion for relief from settlement, which

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was heard by Magistrate Judge Laporte.

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Court adopted Magistrate Judge Laporte’s report and recommendation

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and denied Plaintiff’s motion for relief from settlement.

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0411 CW, Docket Nos. 58, 60).

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a declaration stating that he had not received from Defendants,

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On September 16, 2009, a settlement conference

(C 09-0411 CW, Docket No.

On September 17, 2009, the Court issued a conditional order

(C 09-0411 CW, Docket No. 49).

On September 21,

On December 23, 2009, the

(C 09-

On January 4, 2010, Plaintiff filed

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within ninety days from the date of the Conditional Order of

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Dismissal, the agreed consideration for the settlement of his case.

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(C 09-0411 CW, Docket # 62).

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issued an Order explaining that it had ruled on the issue of the

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settlement, that it would not revisit it and that any further

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papers submitted by Plaintiff attempting to vacate his settlement

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would be returned to him by the clerk.

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66).

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On February 11, 2010, the Court

(C 09-0411 CW, Docket No.

On March 12, 2010, Plaintiff filed case number C 10-01086 CW

United States District Court
For the Northern District of California

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alleging that, in C 09-0411 CW, the Court improperly denied his

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motion to set aside the settlement because Defendants failed to pay

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him or to expunge his record of false charges within ninety days of

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the Conditional Dismissal Order.

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dismissed the complaint as an attempt to re-litigate the issues

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adjudicated in C 09-0411 CW.

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Circuit, which affirmed this Court’s judgment on November 4, 2010.

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In this lawsuit, Plaintiff is again attempting to re-litigate

On August 6, 2010, the Court

Plaintiff appealed to the Ninth

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the issues that he asserted and settled in C 09-0411 CW.

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in the 2009 and the 2010 Orders, Plaintiff may not keep litigating

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these same issues.

As stated

Therefore, his complaint is dismissed.

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IT IS SO ORDERED.

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Dated: 11/29/2011
CLAUDIA WILKEN
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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GRIMES et al,

Case Number: CV11-03120 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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BARBER et al,
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Defendant.
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United States District Court
For the Northern District of California

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/

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 November 29, 2011, 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.

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Jerome L. Grimes
263 Vernon Street
San Francisco, CA 94132

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Dated: November 29, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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