United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983, has filed a request for
leave to proceed in forma pauperis.
Request to Proceed In Forma Pauperis
has requested leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Plaintiff's application makes the
showing required by 28 U.S.C. § 1915(a)(1) and (2).
Accordingly, by separate order, the court directs the agency
having custody of plaintiff to collect and forward the
appropriate monthly payments for the filing fee as set forth
in 28 U.S.C. § 1915(b)(1) and (2).
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint “is frivolous, malicious, or fails to
state a claim upon which relief may be granted, ” or
“seeks monetary relief from a defendant who is immune
from such relief.” Id. § 1915A(b).
instant complaint, filed January 16, 2018, alleges that in
October of 2016, defendants Chau and Smith were deliberately
indifferent to plaintiff's nerve pain, and that in or
around July of 2017, defendant Bobbala was also deliberately
indifferent to plaintiff's nerve pain. See ECF
No. 1 at 3-7. Examination of the court's records, and
plaintiff's own complaint, reveal that plaintiff has
already commenced an action with a complaint concerning these
allegations of deliberate indifference. See Id. at
2; Thornberry v. Kernan, No. 2:17-cv-0953-CMK (E.D.
Cal.), ECF No. 1 (May 5, 2017 Complaint); ECF No. 9 (June 12,
2017 Amended Complaint). Therefore, the claims against
defendants Chau, Smith, and Bobbala must be dismissed as
duplicative of the earlier action. See Cato v. United
States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (A
complaint that “merely repeats pending or previously
litigated claims” may be dismissed as frivolous under
the authority of 28 U.S.C. § 1915).
complaint also alleges that on or around October 31, 2017,
defendant Mohyuddin caused the Utilization Committee to deny
plaintiff epidural steroid injections, which had been
recommended by a specialist, and which were effectively the
only remaining treatment available for plaintiff's
ongoing nerve pain. Liberally, construed, these allegations
are sufficient to state a potentially cognizable Eighth
Amendment deliberate indifference to medical needs claim
against defendant Mohyuddin.
Order and Recommendation
it hereby is ordered that:
1. Plaintiff's request to proceed in forma pauperis (ECF
No. 3) is granted.
2. Plaintiff shall pay the statutory filing fee of $350. All
payments shall be collected in accordance with the notice to
California Department of Corrections and Rehabilitation filed
3. Service is appropriate for defendant Mohyuddin.
4. The Clerk of the Court shall send plaintiff one USM-285
form, one summons, an instruction sheet and one copy of the