Fialho v. Herrera et al

Filing 4

ORDER: 1) Dismissing Civil Action as Frivolous Pursuant to 28 U.S.C. § 1915A(b)(1); and 2) denying 3 Motion for Leave to Proceed in forma pauperis as moot. Signed by Judge John A. Houston on 6/26/2017. (All non-registered users served via U.S. Mail Service) (fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SCOTT FRANK FIALHO,
CDCR #AL-1830,

1) DISMISSING CIVIL ACTION
AS FRIVOLOUS PURSUANT
TO 28 U.S.C. § 1915A(b)(1)

Plaintiff,

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v.

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Case No.: 17-cv-1004-JAH-JMA

G. HERRERA; KISSOL; ANDERSON,

AND

Defendants.

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2) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS MOOT [ECF Doc. No. 3]

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Scott Frank Fialho (“Plaintiff”), currently housed at Mule Creek State Prison

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located in Ione, California, and proceeding pro se, filed this action pursuant to 42 U.S.C.

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§ 1983. See Compl. at 1, ECF Doc. No. 1. Plaintiff did not prepay the civil filing fees

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required by 28 U.S.C. § 1914(a) at the time of filing; instead he has filed a Motion to

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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 3).

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I.

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Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)
The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, obligates the

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Court to review complaints filed by anyone “incarcerated or detained in any facility who

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is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or
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the terms or conditions of parole, probation, pretrial release, or diversionary program,”

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“as soon as practicable after docketing” and regardless of whether the prisoner prepays

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filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). Pursuant to this

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provision of the PLRA, the Court is required to review prisoner complaints which “seek[]

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redress from a governmental entity or officer or employee of a government entity,” and to

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dismiss those, or any portion of those, which are “frivolous, malicious, or fail[] to state a

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claim upon which relief may be granted,” or which “seek monetary relief from a

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defendant who is immune.” 28 U.S.C. § 1915A(b)(1)-(2); Resnick v. Hayes, 213 F.3d

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443, 446-47 (9th Cir. 2000); Hamilton v. Brown, 630 F.3d 889, 892 n.3 (9th Cir. 2011).

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“The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits need

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not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

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2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

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2012)).

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Plaintiff’s complaint is subject to sua sponte dismissal pursuant to 28 U.S.C.

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§ 1915A(b)(1) because it is duplicative of another civil action he is currently litigating.

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See Fialho v. Herrera, et al., S.D. Cal. Civil Case No. 3:16-cv-01170-MMA-DHB

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(Compl., ECF Doc. No. 1). A court “‘may take notice of proceedings in other courts, both

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within and without the federal judicial system, if those proceedings have a direct relation

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to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting

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Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

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A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it

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

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1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and

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internal quotations omitted). Because Plaintiff is already litigating the identical claims

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presented in the instant action against the same defendants in Fialho v. Herrera, et al.,

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S.D. Cal. Civil Case No. 3:16-cv-01170-MMA-DHB, the Court must dismiss this

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duplicative and subsequently filed civil case pursuant to 28 U.S.C. § 1915A(b)(1). See

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Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1; see also Adams v. Cal. Dep’t of
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Health Servs., 487 F.3d 684, 688–89 (9th Cir. 2007) (“[I]n assessing whether the second

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action is duplicative of the first, we examine whether the causes of action and relief

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sought, as well as the parties or privies to the action, are the same.”), overruled on other

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grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).

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II.

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Conclusion and Order
Good cause appearing, IT IS HEREBY ORDERED that this civil action is

DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(1).
IT IS FURTHER ORDERED that Plaintiff’s Motion to Proceed In Forma
Pauperis (ECF Doc. No. 3) is DENIED as moot and that this dismissal shall operate

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without prejudice to Plaintiff’s pursuit of the same claims against the same parties which

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are currently pending in Fialho v. Herrera, et al., S.D. Cal. Civil Case No. 3:16-cv-

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01170-MMA-DHB.

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The Clerk shall close the file.

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Dated: June 26, 2017

________________________________________
HONORABLE JOHN A. HOUSTON
United States District Judge

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