United States District Court, N.D. California
May 5, 2004.
DELANEY BARNES, Petitioner,
Sheriff CHARLES PLUMMER, Respondent
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
This action is dismissed as frivolous.
IT IS SO ORDERED AND ADJUDGED. ORDER OF DISMISSAL
Delaney Barnes, currently in custody at the Santa Rita County Jail in
Dublin, California, has filed a pro se petition for writ of habeas corpus
under 28 U.S.C. § 2254 and seeks leave to proceed in forma pauperis. In
this action, Barnes challenges his battery conviction on the grounds that
he received ineffective assistance of counsel and the victim recanted her
allegations against him. The claims are identical to those Barnes made in
Barnes v. Plummer, No. C 04-1326 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).
Barnes is cautioned that he should not file any more repetitive
petitions and complaints, Filing meritless cases may prevent later
meritorious cases from being heard if the prisoner intends to proceed in
forma pauperis. A prisoner may not bring a civil action in forma
pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical injury."
28 U.S.C. § 1915(g). This is the second case filed by Barnes that is
being dismissed as frivolous because it repeats claims made in another
case. (The first case dismissed was Barnes v. Santa Rita County Jail No.
C 04-115 SI.) In short, if Barnes has one more case dismissed as
frivolous, malicious or for failure to state a claim, he will be greatly
limited in his ability to file even meritorious actions unless he can pay
the entire filing fee when he files a complaint or petition. Filing
repetitive and otherwise meritless actions wastes the court's time and
has a significant consequence for a prisoner-litigant which Barnes should
take into consideration before filing further actions.
This action is dismissed as frivolous. The in forma pauperis
application is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
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