Marinello v. California Dep't of Corr.

Full title: ROSARIO MARINELLO, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND…

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Date published: Jun 15, 2012

Case No.: CV12-02564 PSG (N.D. Cal. Jun. 15, 2012)

Opinion

Case No.: CV12-02564 PSG

06-15-2012

ROSARIO MARINELLO, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, CTF SOLEDAD, Defendant.

PAUL S. GREWAL

ORDER TO REASSIGN CASE AND REPORT AND RECOMMENDATION THAT PLAINTIFF ROSARIO

MARINELLO'S APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED

On May 31, 2012, Plaintiff Rosario Marinello ("Marinello") proceeding pro se filed an amended complaint and an application to proceed in forma pauperis. Based on the application and the file herein,

IT IS HEREBY ORDERED that this case be reassigned to a District Court Judge with the recommendation that Marinello's application to proceed in forma pauperis be DENIED.¹

1 This court is ordering reassignment to a District Court Judge because, absent consent of all parties, a magistrate judge does not have the authority to make case-dispositive rulings. See, e.g., Tripati v. Rison, 847 F.2d 548, 549 (9th Cir. 1988).

Granting or refusing permission to proceed in forma pauperis is a matter within the sound discretion of the trial court.² It is the court's duty to examine any in forma pauperis application "to determine whether the proposed proceeding has merit and if it appears that the proceeding is without merit, the court is bound to deny a motion seeking leave proceed in forma pauperis."³ A federal court must dismiss an in forma pauperis complaint if the complaint is: (1) frivolous; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief.⁴

2 See Shobe v. People of State of California, 362 F.2d 545, 546 (9th Cir. 1966).

3 Smart v. Heinze, 247 F.2d 114, 116 (9th Cir. 1965).

4 See 28 U.S.C. § 1915(e)(2); see also Neitzke v. Williams, 190 U.S. 319, 324 (1989).

Marinello brings a claim for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and a claim for retaliation against the California Department of Corrections and Rehabilitation CTF Soledad ("DOCR").⁵ These claims have already been adjudicated in favor of DOCR and affirmed by the Ninth Circuit.⁶ Although Marinello alleges that material facts were overlooked in the previous decision by the District Court as well as in the denial of appeal by the Ninth Circuit,⁷ Marinello ultimately is attempting to raise the same claims against the same defendant, as he has done several times previously.⁸ His claims therefore appear barred by the doctrine of res judicata and lack merit. The case shall be reassigned to a U.S. District Judge and the undersigned recommends that the application to proceed in forma pauperis be DENIED.

5 See Docket Item No. 6 (Amended Employment Discrimination Complaint Brief and Statement of Facts)

6 See Marinello v. California Dep't of Corrections and Rehabilitation, 430 Fed.Appx. 583, 583 (9th Cir. 2011)

7 See Docket Item No. 6 (Amended Employment Discrimination Complaint Brief and Statement of Facts)

8 See Marinello v. California Dep't of Corrections and Rehabilitation, No. 5:11-cv-05186-PSG; Marinello v. California Dep't of Corrections and Rehabilitation, No. 5:11-cv-06682-RMW.
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IT IS SO ORDERED

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PAUL S. GREWAL

United States Magistrate Judge