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Isabel Tubach v. Johnson

May 18, 2012

ISABEL TUBACH,
PLAINTIFF,
v.
JOHNSON, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING TO DENY MOTION FOR TEMPORARY RESTRAINING ORDER, DENY MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO SECTION 1915(g), AND TO DISMISS ACTION AS DUPLICATIVE Docs. 1, 2, 3 OBJECTIONS DUE WITHIN 14 DAYS

Findings and Recommendations

I. Procedural History

On April 23, 2012, Plaintiff Isabel Tubach ("Plaintiff"), a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. Plaintiff also filed a motion to proceed in forma pauperis and a motion for temporary restraining order. Docs. 2, 3.

II. Three Strikes

A review of the record of actions filed by Plaintiff in the United States District Court reveals that Plaintiff has filed over 150 actions and at least three actions that were dismissed as frivolous, malicious, or for failing to state a claim upon which relief may be granted. Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis. Section 1915(g) provides that:

[I]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).*fn1 Determining whether Plaintiff's actions count as strikes under section 1915(g) requires the Court to conduct a "careful examination of the order dismissing an action, and other relevant information," to determine if, in fact, "the action was dismissed because it was frivolous, malicious or failed to state a claim." Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

The Court takes judicial notice of the following cases which counts as strikes: 1) Tubach v . Gomez, 1:97-cv-05549-OWW-DLB (dismissed as frivolous on October 17, 1997); 2) Tubach v. Farmon, 1:96-cv-05551-REC-SMS (dismissed as frivolous on February 24, 1998); and 3) Tubach v. Rilly, 1:98-cv-05603-REC-HGB (dismissed as frivolous on March 12, 1999).

Plaintiff has three or more strikes which occurred before Plaintiff filed this action on April 23, 2012. Therefore, the Court finds that Plaintiff should be precluded from proceeding in forma pauperis and dismissal of Plaintiff's action is appropriate. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (finding that denial of in forma pauperis status under § 1915(g) mandated dismissal since a prisoner must pay the filing fee at the time of initiating the suit).

Plaintiff alleges imminent danger because Defendant Guzman is orchestrating poisonings up her nose, which will cause a heart attack. Plaintiff also states Guzman is orchestrating orgies and failing to treat Plaintiff's tongue cancer. However, that claim has been filed multiple times and is barred as duplicative.

III. Duplicative Claims

Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997);

Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or previously litigated claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d at 1105 n.2; Bailey, 846 F.2d at 1021. Repeating the same factual allegations asserted in an earlier case, even if now filed against new defendants, is subject to dismissal as duplicative. See, e.g., Bailey, 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975). "Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive disposition of litigation." Adams v. California, 487 F.3d 684, 688, 692-94 (9th Cir. 2007).

The Court has already addressed the claims in Plaintiff's complaint, and Plaintiff has a pending case regarding the same allegations. See Tubach v. Brown, No. 1:11-cv-01476-LJO-MJS, 2011 WL 4709886 (E.D. Cal. Oct. 4, 2011) (dismissing Plaintiff's complaint alleging Jerry Brown and M. Guzman were involved in an alleged conspiracy to murder Plaintiff); Tubach v. Brown, No. 1:11-cv-02028-AWI-GBC (dismissing Plaintiff's complaint alleging Guzman's conspiracy to murder by poison in her nose; a denial of ice chips to alleviate the pain from the cancer in her tongue; and orgies); Tubach v. Guzman, No. 1:10-cv-00913-AWI-SKO (case pending for allegations that Defendant Guzman incites her cell-mates to poison Plaintiff and to provoke her to have a heart attack; stops Defendant Dr. Ezenwngo from treating ...


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