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GARCIA v. MCGRATH

United States District Court, Northern District of California


March 19, 2003

MARTIN GARCIA, PLAINTIFF(S),
v.
JOE MCGRATH, ET AL., DEFENDANT(S).

The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge.

ORDER OF DISMISSAL, (Doc #2)

Plaintiff, a prisoner at Salinas Valley State Prison, has filed a pro se prisoner complaint for damages under 42 U.S.C. § 1983 alleging use of excessive force and denial of due process in connection with a prison disciplinary charge. He raised these same allegations in a prior prisoner complaint which is still pending, however. See Garcia v. McGrath, No C 03-0832 VRW (PR) (ND Cal filed Feb 26, 2003).

A prisoner complaint that merely repeats pending or previously litigated claims may be dismissed under the authority of 28 U.S.C. § 1915A. Cf Cato v United States, 70 F.3d 1103, 1105 n2 (9th Cir 1995) (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir 1988)) (duplicative in forma pauperis complaint may be considered abusive and dismissed under 28 U.S.C. § 1915). The instant action is accordingly DISMISSED without prejudice.

The clerk shall close the file and terminate all pending motions (see, e.g., doc # 2) as moot. An order will issue shortly in Garcia v. McGrath, No C 03-0832 VRW (PR).

SO ORDERED.

20030319

© 1992-2003 VersusLaw Inc.



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