United States District Court, N.D. California
MARK F. KOCH, Plaintiff,
CARLA WADE, Defendant.
ORDER OF DISMISSAL
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
an inmate at the California Health Care Facility
(“CHCF”) in Stockton, filed the instant pro
se civil rights action pursuant to 42 U.S.C. §
1983,  against Defendant Carla Wade.
Plaintiff’s motion for leave to proceed in forma
pauperis will be granted in a separate order.
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that are frivolous, malicious, fail to state a claim
upon which relief may be granted or seek monetary relief from
a defendant who is immune from such relief. See Id.
§ 1915A(b)(1), (2). Pro se pleadings must, however, be
liberally construed. See Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988).
filed this action against Defendant Carla Wade, who is the
“Probation Supervisor” in Santa Cruz. (Compl. at
2.) Plaintiff claims that in September 2014, Defendant called
his boss and had him fired from his new job, thereby
depriving him of fair employment. (Id.) He also
claims that she “discriminated against me mentally,
” and was “harassing me when I had the right to
travel 50 miles out of my county to work, ” according
to the terms of his probation. (Id.) Plaintiff
claims that it is “cruel and unusual in that I had to
sleep at the back door at probation while I wore a clastomy
[sic] bag and had no access to a rest room or
running water.” (Id.)
filed a previous action before this Court against the same
Defendant under Koch v. County of Santa Cruz
Probation, et al., Case No. 15-03895 BLF (PR)
(“Koch I”), which was dismissed on April
5, 2016, for failure to state a claim upon which relief may
be granted. In that case, Plaintiff claimed that in September
2014, Defendant Wade told him that he could no longer go to
Monterey, and that she called his boss and had him fired.
Koch I, (ECF No. 18 at 3). Plaintiff also claimed
that Defendant Wade violated his right under the Eighth
Amendment “not to have unusual and cruel conditions
imposed on [him].” (Id. at 3-4.)
or repetitious litigation of virtually identical causes of
action is subject to dismissal under 28 U.S.C. § 1915 as
malicious. 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
v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir.
1995); Bailey, 846 F.2d at 1021. An in forma
pauperis complaint repeating the same factual
allegations asserted in an earlier case, even if now filed
against new defendants, therefore is subject to dismissal as
duplicative. Bailey, 846 F.2d at 1021; Van Meter
v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975).
is seeking leave to proceed in forma pauperis, as he
did in the previous action discussed above. This is now
Plaintiffs second in forma pauperis action filed
against the same Defendant in which he repeats the same
claims. It is therefore subject to dismissal under §
1915 as abusive. See Cato, 70 F.3d at 1105 n.2;
Bailey, 846 F.2d at 1021.
foregoing reasons, the complaint is DISMISSED as duplicative