United States District Court, N.D. California
February 13, 2004.
DARNELL T. SIMMS, Plaintiff(s)
SANTA RITA JAIL MEDICAL STAFF, et al., Defendant(s)
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
ORDER OF DISMISSAL
Plaintiff, a prisoner at the Alameda County Jail, Santa Rita Facility
in Dublin, California, has filed a pro se prisoner complaint under
42 U.S.C. § 1983 alleging deliberate indifference to his serious
medical needs. Plaintiff raised the same allegations in a prior prisoner
complaint, which is still pending. See Simms v. Santa Rita Medical
Staff. No 04-0353 VRW (PR) (ND Cal filed Jan 27, 2004).
A prisoner complaint that merely repeats pending or previously
litigated claims may be considered abusive and 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). Because
plaintiff raised the same allegations and claims raised herein in a prior
pending prisoner complaint, the instant complaint is deemed duplicative
and abusive under § 1915A. That plaintiff apparently adds additional
this later-filed action does not compel a different result. See Bailey,
846 F.2d at 1021 (complaint repeating same allegations asserted in
earlier case, even if now filed against new defendants, is subject to
dismissal as duplicative).
Plaintiff's request to proceed in forma pauperis (doc # 2) is DENIED
and the complaint is DISMISSED under the authority of
28 U.S.C. § 1915A.
The clerk shall close the file and terminate all pending motions as
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