(PC) Wilson v. Wever et al, No. 2:2010cv02284 - Document 7 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 9/17/10 ORDERING that Clerk is directed to assign a District Judge to this action; RECOMMENDING that this action be dismissed without prejudice re 1 Prisoner Civil Rights Complaint filed by Melvin Lee Wilson. Randonly assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)
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(PC) Wilson v. Wever et al Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MELVIN LEE WILSON, 11 Petitioner, 12 13 No. CIV S-10-2284 GGH P vs. SANDRA LEE WEVER, et. al., 14 ORDER AND Respondents. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se. Plaintiff’s complaint was filed with 17 the court on August 25, 2010. The court’s own records reveal that on August 7, 2009, plaintiff 18 filed a complaint containing virtually identical allegations against the same defendants. (No. 19 Civ. S-09-02191 LKK CMK).1 20 In light of the prior and pending complaints, this court finds that plaintiff, in filing 21 the instant apparently duplicative action, has engaged in what appears to be an abuse of process. 22 Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989)(“reasonable limitations may be placed on” 23 litigants’ “access to the courts when they abuse the judicial process by repeatedly filing frivolous 24 claims”); Glick v. Gutbrod, 782 F.2d 754, 757 (7th Cir. 1986) (court has discretion to dismiss 25 1 26 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 Dockets.Justia.com 1 cases where “clear pattern of abuse of the judicial process” is demonstrated); Adams v. Cal. 2 Dept. of Health Services, 487 F.3d 684, 688 (9th Cir. 2007) (district court has discretion to 3 dismiss a duplicative action). On May 7, 2010, plaintiff’s prior complaint was dismissed without 4 leave to amend because he did not allege that any of the named defendants were state actors, and 5 the court concluded that the deficiencies in his complaint were too great to be cured. By filing a 6 nearly identical complaint within four months of the original complaint’s dismissal, plaintiff has 7 wasted the limited resources of this court. This case should be summarily dismissed. 8 In accordance with the above, IT IS HEREBY RECOMMENDED that this action 9 be dismissed with prejudice. See Fed. R. Civ. P. 41(b). The Clerk of Court is directed to assign 10 a district judge to this case. 11 These findings and recommendations are submitted to the District Judge assigned 12 to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being 13 served with these findings and recommendations, plaintiff may file written objections with the 14 court. The document should be captioned “Objections to Magistrate Judge’s Findings and 15 Recommendations.” Any response to the objections shall be filed and served within fourteen 16 days after service of the objections. Plaintiff is advised that failure to file objections within the 17 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 18 F.2d 1153 (9th Cir. 1991). 19 DATED: September 17, 2010 20 /s/ Gregory G. Hollows 21 UNITED STATES MAGISTRATE JUDGE 22 23 GGH:014 wils2284.dup 24 25 26 2