construing former 28 U.S.C. § 1915(d)
How later courts described this case
- construing former 28 U.S.C. § 1915(d)
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 GREGORY ALLEN BRAZEE, Case No.: 24-cv-0761-MMA (DDL)
Booking No. 23-2740,
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ORDER DISMISSING CIVIL
Plaintiff,
13 ACTION FOR FAILING TO PAY
vs. FILING FEE AND/OR MOVE TO
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PROCEED IN FORMA PAUPERIS
IMPERIAL COUNTY JAIL MEDICAL
15 AND AS FRIVOLOUS
STAFF,
PURSUANT TO
16 Defendant. 28 U.S.C. § 1915A(b)(1)
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19 Plaintiff Gregory Allen Brazee, currently incarcerated at the Imperial County Jail
20 (“ICJ”) in El Centro, California and proceeding pro se, filed a civil rights complaint
21 pursuant to 42 U.S.C. § 1983, on April 25, 2024. (See Compl., Doc. No. 1). Plaintiff did
22 not pay the $405 civil filing fee required by 28 U.S.C. § 1914(a), and has not filed a
23 motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Therefore,
24 his case is subject to dismissal for these reasons alone. However, the Court notes
25 Plaintiff has recently filed another civil action in the Court against the same Defendants
26 and alleging the same claims. Accordingly, for the reasons explained below, the Court
27 also DISMISSES this subsequently filed civil action as duplicative pursuant to 28 U.S.C.
28 § 1915A(b)(1).
1 I. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)
2 The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, obligates the
3 Court to review complaints filed by anyone “incarcerated or detained in any facility who
4 is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or
5 the terms or conditions of parole, probation, pretrial release, or diversionary program,”
6 “as soon as practicable after docketing” and regardless of whether the prisoner prepays
7 filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). Pursuant to this
8 provision of the PLRA, the Court is required to review prisoner complaints which “seek[]
9 redress from a governmental entity or officer or employee of a government entity,” and to
10 dismiss those, or any portion of those, which are “frivolous, malicious, or fail[] to state a
11 claim upon which relief may be granted,” or which “seek monetary relief from a
12 defendant who is immune.” 28 U.S.C. § 1915A(b)(1)-(2); Resnick v. Hayes, 213 F.3d
13 443, 446-47 (9th Cir. 2000); Hamilton v. Brown, 630 F.3d 889, 892 n.3 (9th Cir. 2011).
14 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits need
15 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.
16 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
17 2012)).
18 Plaintiff’s Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C.
19 § 1915A(b)(1) because it is duplicative of another civil action he has recently filed in this
20 Court. See Brazee v. Imperial County Jail, et al., S.D. Cal. Civil Case No. 3:24-cv-
21 00651-RBM (JLB) (“Brazee I”) (Doc. No. 1). A court “‘may take notice of proceedings
22 in other courts, both within and without the federal judicial system, if those proceedings
23 have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th
24 Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).
25 In Brazee I, Plaintiff claims the ICJ, and mostly unidentified members of its
26 medical staff, have failed over the past three months to provide proper medical care for
27 his infected leg. (See Brazee I, Doc. No. 1 at 2‒3, 5.) On April 17, 2024, U.S. District
28 Judge Ruth Bermudez Montenegro denied without prejudice Plaintiff’s Motion to
1 Proceed IFP because he failed to attach certified copies of his prison trust account
2 statements, or an institutional equivalent, as required by 28 U.S.C. § 1915(a)(2). (Id.,
3 Doc. No. 3 at 3.) Judge Montenegro granted Plaintiff 45 days leave in which to correct
4 this deficiency, directed the Clerk of the Court to provide Plaintiff with the Court’s form
5 Motion and Declaration in Support of Motion to Proceed In Forma Pauperis for his use
6 and convenience, and advised him to complete and re-submit it to the Clerk and to
7 include Civil Case No. 24-cv-00651-RBM (JLB) in its caption. (Id. at 4.)
8 Plaintiff has yet to comply with Judge Montenegro’s Order, but he still has time to
9 do so. In the meantime, however, Plaintiff submitted a separate civil rights complaint
10 with the Clerk of the Court on April 25, 2024. The subsequent complaint was assigned to
11 this Court as Brazee v. Imperial County Jail Medical Staff, and designated Civil Case No.
12 24-cv-00761-MMA (DDL) (“Brazee II”), but it names the same Defendants, alleges the
13 same causes of action based on ICJ staff’s alleged failures to adequately treat his leg
14 infection over the last three months, and requests the same relief as the complaint
15 Plaintiff filed on April 5, 2024 in Brazee I. (See Doc. No. 1 at 1‒3.)
16 A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it
17 “merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d
18 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and
19 internal quotations omitted). Because Plaintiff has already brought and is currently
20 pursuing the same claims presented in the instant action against the same defendants in
21 Brazee I, the Court will also dismiss this duplicative and subsequently filed civil case
22 pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at
23 446 n.1; see also Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688–89 (9th Cir.
24 2007) (“[I]n assessing whether the second action is duplicative of the first, we examine
25 whether the causes of action and relief sought, as well as the parties or privies to the
26 action, are the same.”), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880,
27 904 (2008).
28 / / /
1 Conclusion and Order
2 Good cause appearing, IT IS HEREBY ORDERED that this civil action is
3 || DISMISSED based on Plaintiffs failure to pay the civil filing required by 28 U.S.C.
4 1914(a), his failure to move to proceed IFP pursuant to 28 U.S.C. § 1915(a), and as
5 || duplicative pursuant to 28 U.S.C. § 1915A(b)(1).
6 IT IS FURTHER ORDERED that the dismissal of this case will operate without
7 || prejudice to Plaintiff's pursuit of his claims as alleged in Brazee v. Imperial County Jail,
8 al., S.D. Cal. Civil Case No. 24-cv-00651-RBM (JLB). Plaintiff is advised that any
9 || further filings he wishes to submit for Judge Montenegro’s consideration in Brazee J,
10 || must clearly include reference to Civil Case No. 24-cv-00651-RBM (JLB). The Clerk
11 |} will TERMINATE Civil Case No. 24-cv-00761-MMA (DDL), require no separate filing
12 || fee be paid,! and close the file.
13 IT IS SO ORDERED.
14 || Dated: April 30, 2024
15 Mbikuk UW ldiglls
16 HON. MICHAEL M. ELLO
United States District Judge
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24 U.S.C. § 1915 provides that even if “if prisoner brings a civil action or files an appeal
25 ||in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.” 28
6 U.S.C. § 1915(b)(1). For those prisoners granted leave to proceed IFP, the court must
assess “an initial partial filing fee” each time a prisoner “brings a civil action or files an
27 ||appeal.” Bruce v. Samuels, 577 U.S. 82, 89-90 (2016) (emphasis added). Because the
28 Court presumes Plaintiff wishes only to pursue one civil rights action related to his medical
care at ICJ, it will not demand he pay the $405 civil filing fee twice.