972 F. 2d 1337 - Cello-Whitney Jr v. Fleming
972 F2d 1337 Cello-Whitney Jr v. Fleming
972 F.2d 1337
James CELLO-WHITNEY, JR., Plaintiff-Appellant,
v.
Gary FLEMING, et al., Defendants-Appellees.
No. 91-36018.
United States Court of Appeals, Ninth Circuit.
Submitted July 29, 1992.*
Decided Aug. 7, 1992.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before TANG, BEEZER and KOZINSKI, Circuit Judges.
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MEMORANDUM**
James Cello-Whitney, Jr., a Washington state prisoner, appeals pro se the district court's dismissal of his action under 28 U.S.C. § 1915(d) as malicious. We review for an abuse of discretion, Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992), and we affirm.1
Under 28 U.S.C. § 1915, an indigent litigant may prosecute a lawsuit without paying filing fees or court costs.
As a result, IFP litigants, unlike paying litigants, have little "economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." ... To prevent such abusive litigation, section 1915(d) permits federal courts to dismiss IFP claims "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."
Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989) (quoting Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989); 28 U.S.C. § 1915(d)).
In a report and recommendation filed on July 19, 1991, a magistrate judge thoroughly analyzed the history of this lawsuit and recommended that it be dismissed as malicious and abusive of the legal process. The district court adopted the magistrate judge's report and recommendation in an unpublished order entered on August 23, 1991, and dismissed the action.
We have reviewed the findings of the magistrate judge, as adopted by the district court, and we agree with the court's conclusion that this action was both malicious and abusive. Accordingly, the district court did not abuse its discretion by dismissing the action. See 28 U.S.C. § 1915(d); Jackson, 885 F.2d at 640.2
AFFIRMED.3
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The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Because Cello-Whitney corrected the deficiency in his opening brief, the appellees' request that this appeal be dismissed is denied
On appeal, Cello-Whitney also contends that the district court erred by (1) refusing to allow him to withdraw his motion for in forma pauperis status, and (2) failing to grant him an extension of time to object to the magistrate judge's report and recommendation. These contentions lack merit
The appellees' request for sanctions against Cello-Whitney is denied