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SCOTT v. RYAN

United States District Court, Northern District of California


June 4, 2003

DANE SCOTT, PLAINTIFF,
v.
TIMOTHY P. RYAN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge

ORDER OF DISMISSAL

Dane Scott ("plaintiff"), a California Prisoner, filed the above-titled action on May 12, 2003, and paid the filing fee. The complaint makes the same allegations and claims against the same individuals as the complaint filed by plaintiff in an earlier action that was dismissed for failure to state a cognizable basis for relief. See Scott v. Ryan, et al., No. C 01-4096 MMC (PR). A complaint filed by a prisoner proceeding in forma pauperis, such as the complaint in this case, that merely repeats pending or previously litigated claims may be considered abusive and dismissed as frivolous or malicious under 28 U.S.C. § 1915. See Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). Cato and Bailey were decided under 28 U.S.C. § 1915(d), which allowed the court to dismiss an in forma pauperis action brought by a prisoner, where the court was satisfied that the action was "frivolous or malicious."*fn1 In 1996, a new statute was enacted, mandating dismissal of "frivolous" or "malicious" claims brought by a prisoner against a government defendant, regardless of whether the prisoner is proceeding in forma pauperis or, as plaintiff here, has paid the filing fee. See 28 U.S.C. § 1915A.

The Court finds that the proscription against duplicative claims as set forth in Cato and Bailey applies equally to plaintiff and, accordingly, pursuant to § 1915A, the petition is hereby DISMISSED.

All pending motions are terminated.

The clerk shall close the file.

IT IS SO ORDERED.


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