Bailey v. Bonanno et al

Filing 4

ORDER Denying 2 Motion for Leave to Proceed in forma pauperis and Dismissing Complaint. Signed by Judge Roger T. Benitez on 12/30/2011. (All non-registered users served via U.S. Mail Service)(knb)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12

RUSSO BAILEY,

13

CASE NO. 11cv2480 BEN (WVG)
Plaintiff,

ORDER DENYING MOTION TO
PROCEED IFP AND DISMISSING
COMPLAINT

vs.
14
15
16

P. BONANNO, et al.,

[Dkt. No. 2]
Defendants.

17
18

On March 23, 2011, Plaintiff Russo Bailey filed a Complaint in Case No. 11cv577 BEN

19

(WVG). Motions to dismiss were filed by all Defendants appearing in the case and those motions

20

were granted. (Dkt. Nos. 16-21, 28.) Plaintiff sought reconsideration of the Court’s decision granting

21

the motions to dismiss and the Court denied Plaintiff’s motion on August 8, 2011. (Dkt. Nos. 25, 27.)

22

On October 26, 2011, Plaintiff filed an identical Complaint in this case and a Motion for Leave to

23

Proceed In Forma Pauperis (“IFP”). (Dkt. Nos. 1-2.)

24

When a party is proceeding IFP, “the court shall dismiss the case at any time if the court

25

determines that . . . the action . . . is frivolous [or] fails to state a claim on which relief may be

26

granted.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); see also

27

O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990) (finding a “district court may deny leave to

28

proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the

-1-

11cv2480

1

action is frivolous”).

2

The claims asserted in the Complaint filed in this case are identical to the claims dismissed in

3

Case No. 11cv577 BEN (WVG). Because Plaintiff’s Complaint fails to state a claim for relief and

4

Defendants should not be required to defend against the exact same claims having already obtained

5

dismissal of those claims, Plaintiff’s motion to proceed IFP is DENIED and the case is DISMISSED.

6
7

IT IS SO ORDERED.

8
9

DATED: December 30, 2011

10
11

Hon. Roger T. Benitez
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

11cv2480