Marinello v. California Department of Corrections and Rehabilitation, CTF Soledad

Filing 8

ORDER TO REASSIGN CASE AND REPORT AND RECOMMENDATION THAT PLAINTIFF ROSIARIO MARINELLO'S APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED. Signed by Judge Paul S. Grewal on June 15, 2012. (psglc1, COURT STAFF) (Filed on 6/15/2012) (Additional attachment(s) added on 6/15/2012: # 1 CERTIFICATE OF SERVICE) (ofr, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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ROSARIO MARINELLO,

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Plaintiff,
v.

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Case No.: CV12-02564 PSG

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
CTF SOLEDAD,

ORDER TO REASSIGN CASE AND
REPORT AND RECOMMENDATION
THAT PLAINTIFF ROSARIO
MARINELLO’S APPLICATION TO
PROCEED IN FORMA PAUPERIS BE
DENIED

Defendant.

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On May 31, 2012, Plaintiff Rosario Marinello (“Marinello”) proceeding pro se filed an

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amended complaint and an application to proceed in forma pauperis. Based on the application and

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the file herein,

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IT IS HEREBY ORDERED that this case be reassigned to a District Court Judge with the
recommendation that Marinello’s application to proceed in forma pauperis be DENIED. 1

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Granting or refusing permission to proceed in forma pauperis is a matter within the sound

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discretion of the trial court. 2 It is the court’s duty to examine any in forma pauperis application “to
determine whether the proposed proceeding has merit and if it appears that the proceeding is

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This court is ordering reassignment to a District Court Judge because, absent consent of all
parties, a magistrate judge does not have the authority to make case-dispositive rulings. See, e.g.,
Tripati v. Rison, 847 F.2d 548, 549 (9th Cir. 1988).
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See Shobe v. People of State of California, 362 F.2d 545, 546 (9th Cir. 1966).

Case No.: C- 12-02564 PSG
ORDER

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without merit, the court is bound to deny a motion seeking leave proceed in forma pauperis.” 3 A

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federal court must dismiss an in forma pauperis complaint if the complaint is: (1) frivolous; (2)

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fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a

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defendant who is immune from such relief. 4

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Marinello brings a claim for employment discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq. and a claim for retaliation against the California
Department of Corrections and Rehabilitation CTF Soledad (“DOCR”). 5 These claims have
already been adjudicated in favor of DOCR and affirmed by the Ninth Circuit. 6 Although

United States District Court
For the Northern District of California

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Marinello alleges that material facts were overlooked in the previous decision by the District Court

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as well as in the denial of appeal by the Ninth Circuit, 7 Marinello ultimately is attempting to raise

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the same claims against the same defendant, as he has done several times previously. 8 His claims

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therefore appear barred by the doctrine of res judicata and lack merit. The case shall be reassigned
to a U.S. District Judge and the undersigned recommends that the application to proceed in forma

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pauperis be DENIED.
IT IS SO ORDERED

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Dated: 6/15/2012

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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3

Smart v. Heinze, 247 F.2d 114, 116 (9th Cir. 1965).

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See 28 U.S.C. § 1915(e)(2); see also Neitzke v. Williams, 190 U.S. 319, 324 (1989).

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See Docket Item No. 6 (Amended Employment Discrimination Complaint Brief and Statement of
Facts)

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See Marinello v. California Dep’t of Corrections and Rehabilitation, 430 Fed.Appx. 583, 583
(9th Cir. 2011)
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See Docket Item No. 6 (Amended Employment Discrimination Complaint Brief and Statement of
Facts)

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See Marinello v. California Dep’t of Corrections and Rehabilitation, No. 5:11-cv-05186-PSG;
Marinello v. California Dep’t of Corrections and Rehabilitation, No. 5:11-cv-06682-RMW.
Case No.: C- 12-02564 PSG
ORDER

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