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Solomon Percy Temple v. G.D. Lewis

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


May 11, 2012

SOLOMON PERCY TEMPLE, PETITIONER,
v.
G.D. LEWIS,
RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

In considering whether to dismiss an action as frivolous pursuant to § 1915(d), the court has especially broad discretion. Conway v. Fugge, 439 F.2d 1397 (9th Cir. 1971). The Ninth Circuit has held that an action is frivolous if it lacks arguable substance in law and fact. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court's determination of whether a complaint or claim is frivolous is based on "'an assessment of the substance of the claim presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted wrong, however inartfully pleaded.'" Franklin, 745 F.2d at 1227 (citations omitted).

Petitioner's petition was filed with the court on May 7, 2012. The court's own records reveal that on May 7, 2012, petitioner filed a petition containing virtually identical allegations against the same respondents. (2:12-cv-1222 EFB P).*fn1 Due to the duplicative nature of the present action, the court finds it frivolous and, therefore, will dismiss the petition. 28 U.S.C. § 1915(d).

Accordingly, IT IS HEREBY ORDERED that the clerk of the court randomly assign a United States District Judge to this action; and

IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b).

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, petitioner 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. Petitioner 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).

temp1223.123


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