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Wilson v. Wever

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


September 17, 2010

MELVIN LEE WILSON, PETITIONER,
v.
SANDRA LEE WEVER, ET. AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se. Plaintiff's complaint was filed with the court on August 25, 2010. The court's own records reveal that on August 7, 2009, plaintiff filed a complaint containing virtually identical allegations against the same defendants. (No. Civ. S-09-02191 LKK CMK).*fn1

In light of the prior and pending complaints, this court finds that plaintiff, in filing the instant apparently duplicative action, has engaged in what appears to be an abuse of process. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989)("reasonable limitations may be placed on" litigants' "access to the courts when they abuse the judicial process by repeatedly filing frivolous claims"); Glick v. Gutbrod, 782 F.2d 754, 757 (7th Cir. 1986) (court has discretion to dismiss cases where "clear pattern of abuse of the judicial process" is demonstrated); Adams v. Cal. Dept. of Health Services, 487 F.3d 684, 688 (9th Cir. 2007) (district court has discretion to dismiss a duplicative action). On May 7, 2010, plaintiff's prior complaint was dismissed without leave to amend because he did not allege that any of the named defendants were state actors, and the court concluded that the deficiencies in his complaint were too great to be cured. By filing a nearly identical complaint within four months of the original complaint's dismissal, plaintiff has wasted the limited resources of this court. This case should be summarily dismissed.

In accordance with the above, IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice. See Fed. R. Civ. P. 41(b). The Clerk of Court is directed to assign a district judge to this case.

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 fourteen 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." Any response to the objections shall be filed and served within fourteen days after service of the objections. 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).


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