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Dwayne Lowery v. George A. Neotti

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 18, 2011

DWAYNE LOWERY,
CDCR #D-08018, PLAINTIFF,
v.
GEORGE A. NEOTTI, WARDEN; WALKER, M.D., DEFENDANTS.

The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge

ORDER DISMISSING CIVIL ACTION AS DUPLICATIVE § 1915A(b)(1) PURSUANT TO 28 U.S.C.

Plaintiff, an inmate currently incarcerated at the Richard J. Donovan Correctional Facility located in San Diego, California and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. §1983. In addition, Plaintiff has filed a Motion to Proceed in forma pauperis ("IFP"), along with a Motion to Appoint Counsel.

I. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)

The Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A, obligates the Court to review complaints filed by anyone "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

Plaintiff's instant Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because it appears to be duplicative of a case Plaintiff is already litigating. Plaintiff's Complaint contains identical claims that are found in Lowery v. Neotti, et al., S.D. Cal. Civil Case No. 10cv2562 JLS (NLS). A court "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

A prisoner's complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Because Plaintiff is already litigating the same claims presented in the instant action in Lowery v. Neotti, et al., S.D. Cal. Civil Case No. 10cv2562 JLS (NLS), the Court hereby DISMISSES Civil Case No. 11cv1338 AJB (WVG) pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1.

II. Conclusion and Order

Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's Complaint in Civil Case No. 11cv1338 AJB (WVG) is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(1).

The Clerk shall close the file.

IT IS SO ORDERED.

20110818

© 1992-2011 VersusLaw Inc.



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