Pickering v. Clark et al

Filing 4

ORDER for Clerk to LODGE the Complaint in this Action as a Third Amended Complaint in Case 1:11-cv-00937-LJO-DLB(PC); ORDER for Clerk to Administratively CLOSE this CASE signed by Magistrate Judge Gary S. Austin on 11/24/2014. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WAYNE PICKERING, 12 13 14 15 Plaintiff, vs. KEN CLARK, et al., Defendants. 16 1:14-cv-01833-GSA-PC ORDER FOR CLERK TO LODGE THE COMPLAINT IN THIS ACTION AS A THIRD AMENDED COMPLAINT IN CASE 1:11-CV-00937-LJO-DLB-PC (Doc. 1.) ORDER FOR CLERK TO ADMINISTRATIVELY CLOSE THIS CASE 17 18 Wayne Pickering (D-44112) (“Plaintiff”), a state prisoner proceeding pro se, submitted 19 a complaint to the court on November 21, 2014, which was opened by the Clerk as the present 20 case 1:14-cv-01833-GSA-PC. (Doc. 1.) However, the certificate of service attached to the 21 complaint indicates that Plaintiff submitted the complaint as a Third Amended Complaint for 22 case 1:11-cv-00937-LJO-DLB-PC, Pickering v. Ken Clark, et al. (Doc. 1 at 37.) 23 A review of the docket for case 1:11-cv-00937-LJO-DLB-PC shows that Wayne 24 Pickering (D-44112) filed the complaint commencing the case on June 9, 2011. On May 23, 25 2013, the court dismissed the Second Amended Complaint for failure to state a claim, and the 26 case was closed. On June 3, 2013, the plaintiff filed a notice of appeal to the Ninth Circuit. On 27 August 1, 2014, the Ninth Circuit remanded the case to the district court for further 28 proceedings. 1 1 The court has reviewed the complaint for this action and finds that it contains many of 2 the same defendants, allegations, and claims found in the Second Amended Complaint for case 3 1:11-cv-00937-LJO-DLB-PC. Both complaints arose from events at the California Substance 4 Abuse Treatment Facility in Corcoran, California, when Plaintiff was incarcerated there in 5 2006-2009, concerning Plaintiff‟s allegations of inadequate medical care for his left knee which 6 required surgery. Based on these facts, the court finds that Plaintiff‟s complaint for the present 7 action should be treated as a Third Amended Complaint for case 1:11-cv-00937-LJO-DLB- 8 PC.1 9 10 Accordingly, the Clerk of Court is DIRECTED to: 1. 11 12 Lodge the complaint for this action as a Third Amended Complaint in case 1:11cv-00937-LJO-DLB-PC; and 2. Administratively close this case. 13 14 15 IT IS SO ORDERED. Dated: November 24, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 1 “Plaintiffs generally have „no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.‟” Adams v. California Dept. of Health Services, 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir.1977) (en banc), cited with approval in Russ v. Standard Ins. Co., 120 F.3d 988, 990 (9th Cir.1997)); see also Curtis v. Citibank, N.A., 226 F.3d 133, 138–39 (2d Cir. 2000); Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223–24 (7th Cir.1993)). 2

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