Martinez v. Bureau of Immigration & Customs Enforcement

316 F. App'x 640

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2009
• Docket: No. 06-56494
• Status: Published

Opinion

MEMORANDUM

**

Victor Martinez, formerly a detainee of the Bureau of Immigration and Customs Enforcement, appeals pro se from the district court’s order dismissing as frivolous his action pursuant to Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion a district court’s dismissal of a complaint as frivolous, Martin v. Sias, 88 F.3d 774, 775 (9th Cir.1996) (order), and we affirm.

The district court did not abuse its discretion when it dismissed Martinez’s complaint as frivolous because it repeated previously litigated claims. See 28 U.S.C. § 1915(e)(2)(B)© (requiring dismissal of a frivolous complaint filed in forma pauper-is); Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir.1995). Martinez already brought, and voluntarily dismissed, the same claims presented in the instant action in Martinez v. Dep’t of Homeland Sec., et al, S.D. Cal. Civil Case No. 04cvl377 JM (JMA) and Martinez v. Dep’t of Homeland Sec., et al., S.D. Cal. Civil Case No. 04cvl795 LAB (JMA). See Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1076 (9th Cir.1999) (under Fed.R.Civ.P. 41(a)(1), “a voluntary dismissal of a second action operates as a dismissal on the merits if the plaintiff has previously dismissed an action involving the same claims.”).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.