Applegate v. Said

Filing 10

ORDER Vacating 8 Order to Show Cause, signed by Magistrate Judge Michael J. Seng on 1/23/17. Fourteen-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN APPLEGATE,

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Plaintiff,

CASE No. 1:16-cv-0958-MJS (PC)
ORDER VACATING ORDER TO SHOW
CAUSE

v.
(ECF NO. 8)
KHALEL EL SAID,
FOURTEEN- DAY DEADLINE
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a

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magistrate judge. (ECF No. 6.)

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Plaintiff’s complaint, which is before the Court for screening, asserts a First

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Amendment retaliation claim and a California Bane Act claim against a single Defendant,

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Dr. Khalel El Said, for conduct that occurred on December 15, 2015.

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On December 27, 2016, the undersigned issued an Order to Show Cause why

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this action should not be dismissed as duplicative of an earlier-filed case, Applegate v.

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Said, 1:16-cv-0289-JLT (“the earlier-filed case”), where Plaintiff asserted identical claims

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against Dr. Said for identical conduct. Plaintiff filed a response on January 6, 2017,

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acknowledging the similarity of the claims and conceding that the claims asserted in the

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earlier-filed case are subject to dismissal for his failure to exhaust administrative

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remedies before initiating that action. (ECF No. 9.) Plaintiff asks that the claims in the

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earlier-filed case be dismissed and he be allowed to proceed on his claims in this case.

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Plaintiff is informed that the Court has no authority to dismiss any claim in a case

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that is not assigned to it. In that regard, Plaintiff’s request to dismiss his claims against

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Dr. Said in Applegate v. Said, 1:16-cv-289-JLT, is denied. Plaintiff will however be

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granted fourteen days to dismiss the identical claims asserted against Dr. Said in the

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earlier-filed case. Alternatively, if Plaintiff seeks to have the two actions related, he may

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file a Notice of Related Case pursuant to Eastern District of California Local Rule 123, in

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which case Magistrate Judge Jennifer L. Thurston, as the judge assigned to the action

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with the lower number, will make the determination as to whether the two cases should

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be related and this case reassigned to her.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. The December 27, 2016, Order to Show Cause (ECF No. 8) is VACATED;

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2. Plaintiff is granted fourteen days to submit a notice in this case either

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confirming (a) his dismissal of the duplicative claims asserted in Applegate v.

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Said, 1:16-cv-0289-JLT, or (b) his filing of a Notice of Related Case in the

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earlier-filed case; and

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3. Failure to file a notice in this case within the prescribed time period will result

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in the dismissal of this action as duplicative.

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IT IS SO ORDERED.
Dated:

January 23, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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