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Torres v. State

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 5, 2009

FELIX TORRES, JR., A MEMBER OF THE STATE BAR OF CALIFORNIA, PLAINTIFF,
v.
THE STATE OF CALIFORNIA; CALIFORNIA STATE LEGISLATURE; SENATOR DON PERATA AND FABIAN NUNEZ, INDIVIDUALLY AND OFFICIAL CAPACITIES; THE CALIFORNIA STATE GOVENOR ARNOLD SCHWARZENEGER, INDIVIDUALLY AND OFFICIAL CAPACITIES; AND DOES 1-10, INCLUSIVE, DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

This action, in which plaintiff is proceeding pro se, was referred to the undersigned by Local Rule 72-302(c)(21), and 28 U.S.C. § 636(b)(1). Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis is granted.

However, the determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case at any time if it determines, inter alia, that the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.

The court's records reveal that two weeks prior to filing the instant complaint, plaintiff filed, in a separate action, a near-identical complaint containing the same allegations. See Case No. Civ. S-07-2593 JAM EFB. The earlier-filed case was initially filed against the identical defendants named herein, but defendants State of California and the California State Legislature were dismissed by order filed January 17, 2008, which dismissed plaintiff's complaint with leave to amend. Id., Dckt. No. 4. Plaintiff again filed a near-identical amended complaint, without naming the dismissed defendants. On September 16, 2009, the undersigned issued findings and recommendations in Case No. Civ. S-07-2593 JAM EFB, which found that plaintiff failed to state any viable claim, and recommended that the case be dismissed with prejudice. Id., Dckt. No. 35.

The court has reviewed the instant complaint, and finds it nearly identical in text, and completely identical in claims, as the initial and amended complaints filed in Case No. Civ. S-07-2593 JAM EFB. Accordingly, it is recommended that plaintiff's complaint be dismissed as duplicative to Case No. Civ. S-07-2593 JAM EFB.

In accordance with the above, IT IS HEREBY ORDERED that plaintiff's request to proceed in forma pauperis is granted.

Further, for the reasons explained above, as well as those explained in the September 16, 2009, findings and recommendations in Civ. S-07-2593, IT IS HEREBY RECOMMENDED that this action be dismissed. See Fed. R. Civ. P. 41(b).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

20091005

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