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BARNES v. PLUMMER

United States District Court, N.D. California


May 5, 2004.

DELANEY BARNES, Petitioner,
v.
Sheriff CHARLES PLUMMER, Respondent

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

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.

20040505

© 1992-2004 VersusLaw Inc.



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