Westerfield v. Spinks et al
Filing
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ORDER signed by Chief Judge Robert H. Whaley on 5/24/2010 ORDERING the Court GRANTS Petitioner's 5 request to proceed in forma pauperis and DISMISSES 1 the petition with prejudice to reasserting the specified claims in another unpaid complaint. IT IS SO ORDERED. The District Court Executive is directed toenter this Order and forward a copy to Plaintiff. CASE CLOSED (Reader, L)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Cleo Westerfield,
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Plaintiff,
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NO.
CV-08-2457-RHW
vs.
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M.T.A. Spinks, et al.,
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ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT
Defendants.
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Before the Court is pro se state prisoner Plaintiff Cleo Westerfield's Application to Proceed In Forma Pauperis (Ct. Rec. 5), filed October 30, 2008. § 1983. After review, IT IS HEREBY ORDERED: 1. Plaintiff's Application to Proceed In Forma Pauperis (Ct. Rec. 5) is GRANTED. 2. Because the Petition appears to be duplicative of a petition originally filed on August 21, 2008 and pending in the Eastern District of California, Sacramento Division under Civil Case number 08-1970-RCF, the Petition before this Court is DISMISSED. The Court Plaintiff seeks relief pursuant to 42 U.S.C.
may dismiss a duplicative petition as frivolous under the authority of 28 U.S.C. § 1915(d) if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103, 1105 n. 2
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ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT -- 1
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(9th Cir. 1995) (citations omitted). Thus, the current petition is subject to dismissal as duplicative. Plaintiff is cautioned that
unless he is under imminent danger of serious physical injury, a prisoner may not bring a subsequent in forma pauperis action in the district court if, while incarcerated, he has brought three or more actions which were dismissed by the Court prior to service pursuant to 28 U.S.C. § 1915. See 28 U.S.C. § 1915(g). Accordingly, the Court GRANTS Petitioner's request to proceed in forma pauperis and DISMISSES the petition with prejudice to reasserting the specified claims in another unpaid complaint. IT IS SO ORDERED. The District Court Executive is directed to
enter this Order and forward a copy to Plaintiff. DATED this 24th day of May 2010.
S/Robert H. Whaley ROBERT H. WHALEY UNITED STATES DISTRICT JUDGE
C:\WINDOWS\Temp\notes101AA1\dismiss.wpd
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT -- 2
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