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Charles E. Moses, Jr., Cdcr #K-65174 v. Superior Court of San Diego

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 21, 2012

CHARLES E. MOSES, JR., CDCR #K-65174, PLAINTIFF,
v.
SUPERIOR COURT OF SAN DIEGO, COURT STENOGRAPHER, DEFENDANT.

The opinion of the court was delivered by: Dated: June 21, 2012

ORDER DISMISSING CIVIL ACTION AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915A(b)(1) AND DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT

Plaintiff, an inmate currently incarcerated at the California Medical Facility located in Vacaville, 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").

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 has already filed. Plaintiff's Complaint contains identical claims that are found in Moses v. White, et al., S.D. Cal. Civil Case No. 12cv0073 JLS (BGS). 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 Moses v. White, et al., S.D. Cal. Civil Case No. 12cv0073 JLS (BGS), the Court hereby DISMISSES Civil Case No. 12cv0937 AJB (JMA) 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. 12cv0973 AJB (JMA) is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and Plaintiff's Motion to Proceed IFP (ECF No. 3) is DENIED as moot.

This Court CERTIFIES that no IFP appeal from this Order could be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).

The Clerk shall close the file. IT IS SO ORDERED.

Hon. Anthony J. Battaglia U.S. District Judge

20120621

© 1992-2012 VersusLaw Inc.



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