Miller v. McEwen et al

Filing 5

ORDER DISMISSING Civil Action as Frivolous and Denying 4 Motion to Proceed in Forma Pauperis as Moot. Signed by Judge Roger T. Benitez on 10/9/2012.(All non-registered users served via U.S. Mail Service)(knb)

1
2

12 OCT -9 PH 3: '3

3

4
5

6
7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11

12

Civil No.

GERALD LEE MILLER,
CDCR #C-92075,
Plaintiff,

13
14

vs.

15
16

17
18
19

12cv1481 BEN (WVG)

L.S. McEWEN; GJ. JANDA; R.
LIZARRAGA; DR. RICHARD
KORNBLUTH; PARAMO; H. AMEZCUA;
S. HARDMAN; ALVAREZ; T. ALVAREZ;
B. DOMINGUES; C. VILLALOBOS;
A. CASTRO; J. FLORES; M. VITELA;
ZAMORA,

ORDER DISMISSING CIVIL
ACTION AS FRIVOLOUS
PURSUANT TO 28 U.S.C.
§ 1915A(b)(1) AND DENYING
MOTION TO PROCEED
IN FORMA PAUPERIS
AS MOOT
(ECF No.4)

Defendants.

20
21
22

Gerald Lee Miller ("Plaintiff'), currently incarcerated at Kern Valley State Prison located

23

in Delano, California, and proceeding pro se, has filed this action pursuant to 42 U.S.C. § 1983.

24

In addition, Plaintiff has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28

25

U.S.C. § 1915(a) (ECF No.4).

26

I.

Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)

27

As amended by The Prison Litigation Reform Act, 28 U.S.C. § 1915A obligates the Court

28

to review complaints filed by anyone "incarcerated or detained in any facility who is accused of,
1:\Everyone\_EFILE-PROSEIBENI12cvI481-dup & dny!FP moot.wpd

-1-

12cv2333 JLS (WVG)

1 sentenced for, or adjudicated delinquent for, violations ofcriminal law or the terms or conditions
2 of parole, probation, pretrial release, or diversionary program," ""as soon as practicable after
3

docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed IFP.

4 See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any
5

portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may

6

be granted. 28 U.S.C. § 1915A(b); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

7

Plaintiffs Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C.

8

§ 1915A(b)(l) because it is duplicative of a Complaint he has already filed in another civil

9

action. Indeed, Plaintiffs Complaint contains identical allegations against the same defendants

10

already brought before and considered by United States District Judge Janis Sammartino in

11

Miller v. McEwen, et ai., S.D. Cal. Civil Case No. llcv2333 JLS (WVG). A court "'may take

12

notice of proceedings in other courts, both within and without the federal judicial system, if

13

those proceedings have a direct relation to matters at issue.'" Bias v. Moynihan, S08 F.3d 1212,

14

122S (9th Cir. 2007) (quoting Bennettv. Medtronic, Inc., 28S F.3d 801,803 n.2 (9th Cir. 2002».

15

A prisoner's complaint is considered frivolous under 28 U.S.C. § 1915A(b)(l) if it

16

"merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103,

17

110S n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d» (citations and internal

18

quotations omitted). Thus, because Plaintiff has already filed the same Complaint he has filed

19

in this action in Miller v. McEwen, et ai., S.D. Cal. Civil Case No. l1cv2333 JLS (WVG), the

20

Court hereby DISMISSES S.D. Cal. Civil Case No. 12cv1481 BEN (WVG) pursuant to 28

21

U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 110S n.2; Rhodes, 621 F.3d at 1004.

22

II.

Conclusion and Order

23

Good cause appearing, IT IS HEREBY ORDERED that:

24

(1)

25

Plaintiffs Complaint in Civil Case No. 12cv1481 BEN (WVG) is DISMISSED

as frivolous pursuant to 28 U.S.C. § 1915A(b)(l).
(2)

26
27

///

28

Plaintiffs Motion to Proceed IFP (ECF No.4) is DENIED as moot.

///

l:\Everyone,_EFlLE·PROSEIBEN\12cvI481-dup & dny IFP moot.wpd

-2-

12cv2333 .ILS (WVGi

1

(3)

This Court CERTIFIES that no IFP appeal from this Order could be taken "in good

2 faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445

3 (1962); Gardner v. Pogue, 558 F.2d 548,550 (9th Cir. 1977) (indigent appellant is permitted to

4 proceed IFP on appeal only if appeal would not be frivolous).

5

The Clerk shall close t e file.

6
7 DATED:
8
9

10
11
12
13

14
15
16
17
18
19

20
21
22
23
24
25
26
27
28
I'iEveryonel_EFlLE-PROSE\BENI12cv1481-dup & dny IFP moot. wpd

-3-

J2cv2333 JLS (WVG)