United States District Court, N.D. California
April 22, 2004.
DELANEY BARNES, Plaintiff,
SANTA RITA JAIL INMATE SERVICES, Defendants
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
This action is dismissed as frivolous because it repeats the
allegations made in another action.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
Delaney Barnes, currently in custody at the Santa Rita County Jail in
Dublin, CaliforniaI filed this pro se civil rights action
under 42 U.S.C. § 1983. In this action, Bames complains that jail
staff failed to mail his state habeas petition on November 3, 2002.
The events complained of in this action are identical to the events
complained of in Barnes v. Santa Rita Jail Inmate Services.
No. C 04-145 SI. This action is DISMISSED as frivolous because it
repeats claims made in another case. See Bailey v. Johnson
846 F.2d 1019, 1021 (5th Cir. 1988) (duplicative or repetitious litigation
of virtually identical causes of action is subject to dismissal under
28 U.S.C. § 1915 as malicious).
The court chooses to dismiss the earlier-filed case (i. e., No. C
04-115 SI) rather than the later-filed case (i. e., No. C 04-145 SI)
because the earlier-filed case was more deficient. That is, the
complaint in Case No. C 04-115 indicated mat administrative remedies
had not been exhausted while the complaint in Case No. C 04-145
indicated mat administrative remedies had been exhausted. Had the
court dismissed Case No. C 04-145 as duplicative of Case No. C 04-115,
Case No. C 04-115 SI would still have to be dismissed because it
affirmatively pled that administrative remedies had not been
exhausted. Additionally, a complete in forma pauperis application was
only filed in Case No. C 04-145. The in forma pauperis application in
Case No. C 04-115 was incomplete and therefore is DENIED. (Docket # 2.)
This action is dismissed as frivolous. The clerk shall close the file.
IT IS SO ORDERED.
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