Johnson v. Gains et al

Filing 3

ORDER: (1) Dismissing civil action as Duplicative pursuant to 28 U.S.C. 1915A(b)(1); and (2) Denying 2 Motion to proceed in forma pauperis as moot. Signed by Judge Dana M. Sabraw on 1/6/10. (All non-registered users served via U.S. Mail Service)(lao)(kaj).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ANTHONY WAYNE JOHNSON. Jr., CDCR #F-58411, Plaintiff, vs. M. GAINS, et al., Defendants.

Civil No. ORDER:

09-2868 DMS (AJB)

(1) DISMISSING CIVIL ACTION AS DUPLICATIVE PURSUANT TO 28 U.S.C. § 1915A(b)(1); and
(2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT [Doc. No. 2]

Anthony Wayne Johnson, Jr. ("Plaintiff"), currently incarcerated at Salinas Valley State Prison located in Soledad, California, and proceeding pro se, has submitted a civil rights Complaint pursuant to 28 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No 2]. /// ///
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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

review complaints filed by anyone "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). Plaintiff's instant Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because it appears to be duplicative of a case Plaintiff is currently litigating. Plaintiff's Complaint contains identical claims and defendants that are found in Johnson v. Gains, et al., S.D. Cal. Civil Case No. 09cv1312 LAB (POR). A court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 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, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Because Plaintiff is already litigating the same claims presented in the instant action in Johnson v. Gains, et al., S.D. Cal. Civil Case No. 09cv1312 LAB (POR), the Court hereby DISMISSES Civil Case No. 09cv2868 DMS (AJB) pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1. II. Conclusion and Order Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's Complaint in Civil Case No. 09cv2868 DMS (AJB) is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff's Motion to Proceed IFP is DENIED as moot.
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The Clerk shall close the file. IT IS SO ORDERED.

DATED: January 6, 2010

HON. DANA M. SABRAW United States District Judge

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