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Gieck v. Canada

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 14, 2007

DENNIS MICHAEL GIECK, CDCR #K-76640, PLAINTIFF,
v.
L. CANADA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge

ORDER: (1) DISMISSING CIVIL ACTION AS DUPLICATIVE PURSUANT TO 28 U.S.C. § 1915A(b)(1); and (2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND MOTION TO AMEND COMPLAINT AS MOOT [Doc. Nos. 2, 4]

Plaintiff, a state inmate currently incarcerated at Calipatria State Prison located in Calipatria, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. §1983.*fn1 Plaintiff has not prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No 2]. Before the Court was able to screen Plaintiff's Complaint, he filed a "Motion to Amend/Correct Complaint," along with a First Amended Complaint. Plaintiff's Motion seeking leave to file an Amended Complaint is DENIED as moot as "a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." FED.R.CIV.P.15(a).

I. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)

The Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A, obligates the Court to review complaints filed by anyone "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

Plaintiff's instant First Amended Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because it appears to be duplicative of a civil rights case Plaintiff is already litigating. Plaintiff's First Amended Complaint contains identical claims and defendants that are found in Gieck v. Sigmond, et al., S.D. Cal. Civil Case No. 07cv1734 L (PCL). A court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

A prisoner's complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Because Plaintiff has already litigated the same claims presented in the instant action in Gieck v. Sigmond, et al., S.D. Cal. Civil Case No. 07cv1734 L (PCL), the Court hereby DISMISSES Civil Case No. 07cv2083 J (BLM) pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1.

II. Conclusion and Order

Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's First Amended Complaint in Civil Case No. 07cv2083 J (BLM) is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff's Motion to Proceed IFP [Doc. No. 2] and "Motion to Submit Corrected Complaint" are DENIED as moot. The Clerk shall close the file.

IT IS SO ORDERED.


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