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Westerfield v. Spinks

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


May 24, 2010

CLEO WESTERFIELD, PLAINTIFF,
v.
M.T.A. SPINKS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Robert H. Whaley United States District Judge

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT

Before the Court is pro se state prisoner Plaintiff Cleo Westerfield's Application to Proceed In Forma Pauperis (Ct. Rec. 5), filed October 30, 2008. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.

After review, IT IS HEREBY ORDERED:

1. Plaintiff's Application to Proceed In Forma Pauperis (Ct. Rec. 5) is GRANTED.

2. Because the Petition appears to be duplicative of a petition originally filed on August 21, 2008 and pending in the Eastern District of California, Sacramento Division under Civil Case number 08-1970-RCF, the Petition before this Court is DISMISSED. The Court may dismiss a duplicative petition as frivolous under the authority of 28 U.S.C. § 1915(d) if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995) (citations omitted). Thus, the current petition is subject to dismissal as duplicative. Plaintiff is cautioned that unless he is under imminent danger of serious physical injury, a prisoner may not bring a subsequent in forma pauperis action in the district court if, while incarcerated, he has brought three or more actions which were dismissed by the Court prior to service pursuant to 28 U.S.C. § 1915. See 28 U.S.C. § 1915(g).

Accordingly, the Court GRANTS Petitioner's request to proceed in forma pauperis and DISMISSES the petition with prejudice to reasserting the specified claims in another unpaid complaint.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward a copy to Plaintiff.

20100524

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