Prasad v. County of San Mateo

Opinion

1 2 3 6 7 KEVIN PRASAD, Case No. 22-cv-00975-JST

8 Plaintiff, ORDER DENYING WITHOUT 9 v. PREJUDICE REQUEST FOR RECONSIDERATION AND REQUEST 10 COUNTY OF SAN MATEO, et al., TO REOPEN; DIRECTIONS TO CLERK Defendants. 11 Re: ECF No. 8 12 13 On or about February 17, 2022, Plaintiff filed this pro se civil rights action pursuant to 42 14 U.S.C. § 1983. ECF No. 1. That same day, the Clerk of the Court informed Plaintiff that this 15 action was deficient because Plaintiff had not paid the filing fee or filed an application to proceed 16 in forma pauperis. ECF No. 5. Plaintiff was instructed to respond within twenty-eight days of the 17 date of this order. Id. Plaintiff did not respond to this notice. On May 26, 2022, the Court 18 dismissed this action for failure to file an in forma pauperis application without prejudice to filing 19 a motion to reopen the action accompanied by either the filing fee or an in forma pauperis 20 application on the proper form with the required supporting documents. ECF No. 6. The Court 21 entered judgment in favor of Defendants and against Plaintiff on the same day. ECF No. 7. 22 Now pending before the Court is Plaintiff’s request that the Court reopen this action 23 because he never received ECF No. 5 and has been unable to obtain an updated version of the in 24 forma pauperis application. Plaintiff states that he assumed that the Court never received his 25 original complaint and therefore filed another complaint with similar allegations, which was given 26 the case number C No. 4:22-cv-02720 JST. Plaintiff requests that the Court reconsider its 27 dismissal of this action and reopen this action. ECF No. 8. The Court DENIES this request to 1 pauperis application on the proper form with the required supporting documents. This denial is 2 without prejudice to Plaintiff re-filing a motion to reopen accompanied by an in forma pauperis 3 application on the proper form with the required supporting documents.' The Clerk is directed to 4 send Plaintiff two copies of the Court’s in forma pauperis application. 5 In any renewed motion to reopen, Plaintiff must address whether this action, C No. 22-cv- 6 02720 JST, is duplicative of C No. 22-cv-00975. Duplicative or repetitious litigation of virtually 7 identical causes of action is subject to dismissal under 28 U.S.C. § 1915 as malicious. Bailey v. 8 Johnson, 846 F.2d 1019, 1021 (Sth Cir. 1988). An in forma pauperis complaint that merely 9 repeats pending or previously litigated claims may be considered abusive and dismissed under 10 Section 1915. Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); Bailey, 846 F.2d at 11 1021. An in forma pauperis complaint repeating the same factual allegations asserted in an earlier 12 case, even if now filed against new defendants, therefore is subject to dismissal as duplicative. 5 13 Bailey, 846 F.2d at 1021. If C No. 22-cv-02720 JST is duplicative of C No. 22-cv-00975, Plaintiff 14 should identify which action he seeks to maintain and dismiss the other one. 3 15 This order terminates ECF No. 8. a 16 IT IS SO ORDERED. 17 Dated: June 3, 2022 . 18 Op JON S. TIGAR 19 ited States District Judge 20 21 22 23 24 25 26 27 ' The Court may not apply Plaintiff’s in forma pauperis applications filed in other cases in this 28 action. To obtain leave to proceed in forma pauperis in this action, Plaintiff must file an application in this action.