(HC) Wilson v. Arnold, No. 2:2014cv02300 - Document 6 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/3/14 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALPHONSO RAY WILSON, 12 No. 2:14-cv-2300 MCE GGH P Petitioner, 13 v. 14 ERIC ARNOLD, 15 FINDINGS & RECOMMENDATIONS Respondent. 16 17 18 19 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 20 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 21 28 U.S.C. § 1915(a). The court must now determine if the action is frivolous or malicious. 22 In considering whether to dismiss an action as frivolous pursuant to § 1915(d), the court 23 has especially broad discretion. Conway v. Fugge, 439 F.2d 1397 (9th Cir. 1971). The Ninth 24 Circuit has held that an action is frivolous if it lacks arguable substance in law and fact. Franklin 25 v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court’s determination of whether a 26 complaint or claim is frivolous is based on “‘an assessment of the substance of the claim 27 presented, i.e., is there a factual and legal basis, of constitutional dimension, for the asserted 28 wrong, however inartfully pleaded.’” Franklin, 745 F.2d at 1227 (citations omitted). 1 1 Petitioner’s petition was filed with the court on October 2, 2014. The court’s own records 2 reveal that on October 1, 2014, petitioner filed a petition containing virtually identical allegations 3 against the same respondents. (Civ.S. 2:14-cv-2288 TLN CKD).1 Due to the duplicative nature 4 of the present action, the court finds it frivolous and, therefore, will dismiss the petition. 28 5 U.S.C. § 1915(d). 6 7 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 8 9 These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served 10 with these findings and recommendations, petitioner may file written objections with the court. 11 The document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendations.” Petitioner is advised that failure to file objections within the specified time 13 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 14 Cir. 1991). 15 Dated: November 3, 2014 16 /s/ Gregory G. Hollows 17 UNITED STATES MAGISTRATE JUDGE 18 19 GGH:076/wils2300.123 20 21 22 23 24 25 26 27 28 1 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). 2

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