IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 21, 2009
THOMAS CLINTON, PLAINTIFF,
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 72-302(c)(21).
Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).
Plaintiff's complaint was filed with the court on April 21, 2009. The court's own records reveal that plaintiff is proceeding with an action, filed on August 11, 2005, that is the subject of the instant complaint. (No. Civ. S-05-1600 LKK CMK PC).*fn1 The current allegations are that defendants spoliated evidence in the prior case, falsified state records in regard to that case, concealed plaintiff's rape in that case, obstructed plaintiff's access to the court by backdating the grievance system so that plaintiff would be prevented from exhausting administrative remedies in that case, failed to alert the Chief Medical Officer of plaintiff's rape so valuable evidence would be retained in that case, and willfully falsified plaintiff's prison rape investigation records in that case. All of the allegations in this case pertain to alleged misconduct by defendants in the 2005 case. The proper manner for raising all of these allegations is by filing a motion in the 2005 case. Due to the duplicative nature of the present action, the court will recommend that the complaint be dismissed.
In accordance with the above, IT IS HEREBY ORDERED that: plaintiff's request for leave to proceed in forma pauperis is granted.
IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).