Thomas v. Ogbehi et al

Filing 22

ORDER Regarding Plaintiff's 21 Notice of New Case Filed, signed by Magistrate Judge Sandra M. Snyder on 4/20/16. Amended Complaint Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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Plaintiff,

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Case No. 1:15-cv-01059-LJO-DLB PC
ORDER REGARDING PLAINTIFF’S
NOTICE OF NEW CASE FILED

v.
(Document 21)

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C. OGBEHI, et al.,

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Defendants.

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Plaintiff Josh Thomas (“Plaintiff”) is a California state prisoner proceeding pro se in this civil
action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 10, 2015.

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On July 14, 2016, the Court determined that Plaintiff was subject to 28 U.S.C. 1915(g), and
dismissed the action without prejudice to refiling accompanied by the filing fee. Plaintiff appealed
the dismissal.

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The action was remanded by the Ninth Circuit on February 22, 2016. On March 29, 2016,
the Court therefore reopened this action and ordered Plaintiff to file an amended complaint within
thirty (30) days.

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On April 18, 2016, Plaintiff filed a “Notice of New Case Filed,” in which he explained that
while this appeal was pending, he filed a new action, 1:15-cv-01845-LJO-SAB (PC), involving the
same claims and same Defendants. The filing was not accompanied by the filing fee.
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Plaintiff’s filing of 1:15-cv-1845-LJO-SAB (PC) was premature, as the Ninth Circuit had not

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yet ruled on his appeal. It also resulted in a duplicative action, and it was dismissed as such on April

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18, 2016.1

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Accordingly, Plaintiff SHALL file an amended complaint within thirty (30) days of the date
of service in this action.

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IT IS SO ORDERED.
Dated:

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April 20, 2016

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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In the Court’s August 31, 2015, order denying Plaintiff’s motion for reconsideration, the Court noted that the dismissal
was without prejudice, and that Plaintiff could file a new action with a more detailed complaint. The Court’s instruction
was valid at the time, as Plaintiff had not yet filed an appeal. When Plaintiff chose to appeal the dismissal, however, a
new action was not the proper method for prosecuting his claims.

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