Bryant v. Thomas et al

Filing 5

ORDER VACATED per 12 . ORDER signed by Judge William Q. Hayes on 7/24/09. Plaintiff's Complaint is dismissed as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and for lack of proper venue. Plaintiff's Motion to Proceed IFP 2 and Motion for Appointment of Counsel 3 are denied as moot. The Clerk shall close the file. (All non-registered users served via U.S. Mail Service).(tkl) (av1). Modified text on 9/28/2009 (tkl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff, a state inmate currently incarcerated at Kern Valley State Prison located in Defendants. SELEAINA ANNE THOMAS, et al.,
vs.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
KEVIN DARNELL BRYANT, CDCR #D-56620, Plaintiff,
Civil No. 09-1334 WQH (NLS)

ORDER: (1) DISMISSING CIVIL ACTION AS DUPLICATIVE PURSUANT TO 28 U.S.C. § 1915A(b)(1); and
(2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND MOTION FOR APPOINTMENT OF COUNSEL AS MOOT [Doc. Nos. 3, 4]

24 Delano, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 25 U.S.C. §1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); 26 instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. 27 § 1915(a) [Doc. No 2], along with a Motion for Appointment of Counsel [Doc. No. 3]. 28 / / /
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-1-

08cv1953

1 2 3

I. SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915A(b) The Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A, obligates the Court to

4 review complaints filed by anyone "incarcerated or detained in any facility who is accused of, 5 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions 6 of parole, probation, pretrial release, or diversionary program," "as soon as practicable after 7 docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed IFP. 8 See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any 9 portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may 10 be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). 11 Plaintiff's instant Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C.

12 § 1915A(b)(1) because it appears to be duplicative of a case Plaintiff has already litigated. 13 Plaintiff's Complaint contains identical claims and defendants that are found in Bryant v. 14 Thomas, et al., S.D. Cal. Civil Case No. 06-2573 W (AJB). A court "may take notice of 15 proceedings in other courts, both within and without the federal judicial system, if those 16 proceedings have a direct relation to matters at issue." United States ex rel. Robinson Rancheria 17 Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 18 19 A prisoner's complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103,

20 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal 21 quotations omitted). Because Plaintiff has already litigated the same claims presented in the 22 instant action in Bryant v. Thomas, et al., S.D. Cal. Civil Case No. 06-2573 W (AJB), the Court 23 hereby DISMISSES the claims against Defendants Thomas, Levin, Vrooman, Sepulveda, 24 Edwards and Scribner in Civil Case No. 09cv1334 WQH (NLS) pursuant to 28 U.S.C. 25 § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1. 26 The remaining claims in Plaintiff's Complaint must be dismissed for lack of proper

27 venue. Venue may be raised by a court sua sponte where the defendant has not yet filed a 28 responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486,
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1 1488 (9th Cir. 1986). "A civil action wherein jurisdiction is not founded solely on diversity of 2 citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district 3 where any defendant resides, if all defendants reside in the same State, (2) a judicial district in 4 which a substantial part of the events or omissions giving rise to the claim occurred, or a 5 substantial part of property that is the subject of the action is situated, or (3) a judicial district 6 in which any defendant may be found, if there is no district in which the action may otherwise 7 be brought." 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v.

8 Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). "The district court of a district 9 in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in 10 the interests of justice, transfer such case to any district in or division in which it could have 11 been brought." 28 U.S.C. § 1406(a). 12 Here, the remaining claims arise from events that occurred at Kern Valley State Prison

13 and all the remaining Defendants are alleged to reside in Kern County or Sacramento. None of 14 the remaining Defendants are alleged to reside in the Southern District. See 28 U.S.C. 84(d) 15 ("The Southern District [of California] comprises the counties of Imperial and San Diego."). 16 Thus, venue may be proper in the Eastern District of California, pursuant to 28 U.S.C.

17 § 84 but not in the Southern District of California. See 28 U.S.C. § 1391(b); Costlow, 790 F.2d 18 at 1488. The Court dismisses the remaining claims without prejudice should Plaintiff choose 19 to file a new action in the Eastern District of California. 20 II. 21 22 Conclusion and Order Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's Complaint in Civil Case No. 09cv1334 WQH (NLS) is DISMISSED as

23 frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and for lack of proper venue. Plaintiff's Motion 24 to Proceed IFP [Doc. No. 2] and Motion for Appointment of Counsel [Doc. No. 3] are DENIED 25 as moot. The Clerk shall close the file. 26 DATED: July 24, 2009 27 28 WILLIAM Q. HAYES United States District Judge
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