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Herbert Johnson, Cdcr #P-60805 v. J. Walker; Dr. Kornblutt; S. Wager

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


June 25, 2012

HERBERT JOHNSON, CDCR #P-60805, PLAINTIFF,
v.
J. WALKER; DR. KORNBLUTT; S. WAGER,
DEFENDANTS.

The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DISMISSING CIVIL ACTION AS FRIVOLOUS 1915A(b)(1) AND DENYING MOTION TO PROCEED PURSUANT TO 28 U.S.C. IN FORMA PAUPERIS AS MOOT (ECF No. 10)

Herbert Johnson ("Plaintiff"), currently incarcerated at the Richard J. Donovan Correctional Facility located in San Diego, California, and proceeding pro se, initially submitted a civil rights Complaint pursuant to 28 U.S.C. § 1983 in the Eastern District of California. United States Magistrate Judge John F. Moulds determined that none of the defendants resided in the Eastern District*fn1 and thus, transferred the matter on April 2, 2012. (ECF No. 4.) Plaintiff has filed a certified copy of his inmate trust account statement which the Court liberally construes to be a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 10).

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

As amended by The Prison Litigation Reform Act, 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); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).

Plaintiff's Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because it is duplicative of a Complaint he has already filed in another civil action. Indeed, Plaintiff's Complaint contains identical allegations against the same defendants already brought before and considered by United States District Judge John Houston in Johnson v. Millard, S.D. Cal. Civil Case No. 11cv1691 JAH (NLS), as well as United States Magistrate Judge Edmund F. Brennan in Johnson v. Walker, E.D. Cal. Civil Case No. 11cv3221 EFB.*fn2 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.'" Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

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). Thus, because Plaintiff has already filed the same Complaint he has filed in this action in Johnson v. Millard, S.D. Cal. Civil Case No. 11cv1691 JAH (NLS) and Johnson v. Walker, E.D. Cal. Civil Case No. 11cv3221 EFB, the Court hereby DISMISSES S.D. Cal. Civil Case No. 12cv0841 LAB (RBB) pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Rhodes, 621 F.3d at 1004.

II. Conclusion and Order

Good cause appearing, IT IS HEREBY ORDERED that: Plaintiff's Complaint in Civil Case No. 12cv0841 LAB (RBB) is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and Plaintiff's Motion to Proceed IFP (ECF No. 10) 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.


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