(PC) Garcia v. Lynch

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL LUCIEN GARCIA, No. 2:23-cv-0737 KJM CKD P 12 Plaintiff, 13 v. ORDER AND JEFF LYNCH, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants.

17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983 against employees of the California Department of Corrections and Rehabilitation. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

1 The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

6 The court has reviewed plaintiff’s complaint and finds that the claims presented therein have already been presented to this court in the complaint filed in Garcia v. Allison, 2:22-cv-1068 KJM CKD P (ECF No. 17). A prisoner's complaint is considered frivolous under 28 U.S.C. § 9 1915A(b)(1) if it “merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Accordingly, plaintiff’s complaint should be dismissed as frivolous and this case be closed.

13 The court notes that on May 15, 2023, plaintiff asked that this matter be stayed pending receipt of property following a prison transfer. It is not clear whether plaintiff has received his property, but it is cleat that, regardless, this action is frivolous as described above. This being the case, there is not good cause for a stay.

17 In accordance with the above, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 7) is granted.

19 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected and paid in accordance with this court’s order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

22 IT IS HEREBY RECOMMENDED that: 23 1. Plaintiff’s motion for a stay (ECF No. 6) be denied; 24 2. Plaintiff’s complaint be dismissed as duplicative and frivolous; and 25 3. This case be closed.

26 These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections | with the court. The document should be captioned “Objections to Magistrate Judge’s Findings || and Recommendations.” Plaintiff is advised that failure to file objections within the specified || time waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th 4} Cir. 1991).

5 | Dated: January 10, 2024 Card Kt | La Ly (g— 6 CAROLYN K DELANEY?

7 UNITED STATES MAGISTRATE JUDGE | 1 garc0737.dup