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Nguon v. Virga

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


November 10, 2010

HUNG DUONG NGUON, PLAINTIFF,
v.
TIM V. VIRGA, DEFENDANT.

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

ORDER

Petitioner is state prisoner proceeding pro se. On August 8, 2010, this court redesignated this action as a civil rights action pursuant to 42 U.S.C. § 1983 and dismissed petitioner's complaint with leave to amend within twenty-eight days. Petitioner has not filed an amended complaint. Moreover, it has come to the court's attention that on April 30, 2010, petitioner initiated an action making the same allegations against the same defendant as in the instant case (Case No. CIV S-10-1058 LKK DAD P). On October 5, 2010, a judgment of dismissal was entered in that case as a result of petitioner's failure to timely file a properly completed in forma pauperis application.

In light of the prior and pending complaints, this court finds that plaintiff, in filing the instant duplicative action, has engaged in what appears to be an abuse of process. Adams v. Cal. Dept. of Health Services, 487 F.3d 684, 688 (9th Cir. 2007) (district court has discretion to dismiss a duplicative action); 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). If plaintiff believed he had any colorable allegations regarding the instant defendant, he could have proceeded as instructed in Case No. CIV S-10-1058 LKK DAD P. Plaintiff's filing against the same defendant for the same alleged wrongs in the instant action places an undue burden on this court. This case should be summarily dismissed.

Moreover, plaintiff is in default of this court's order requiring the filing of an amended complaint, and in filing an appropriate in forma pauperis application.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's complaint (Doc. #1) is dismissed with prejudice.

20101110

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