Martinez v. Davey

Filing 13

ORDER to SHOW CAUSE why Action Should not be Dismissed as Duplicative signed by Magistrate Judge Barbara A. McAuliffe on 06/05/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO MARTINEZ,

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Plaintiff,
v.
D. DAVEY,

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Case No. 1:16-cv-01655-BAM (PC)
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED AS
DUPLICATIVE
(ECF No. 1)

Defendant.

TWENTY-ONE (21) DAY DEADLINE

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Plaintiff Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this action under 42 U.S.C. § 1983. Plaintiff initiated this action on June 17, 2016, in

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the Northern District of California. (ECF No. 1.) On October 27, 2016, the case was transferred

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to this district. (ECF No. 6.) Plaintiff consented to the jurisdiction of a United States Magistrate

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Judge. (ECF No. 11.) Plaintiff’s complaint is currently before the Court for screening.

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I.

Screening Requirement and Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C.

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§ 1915(e)(2)(B)(ii).
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Plaintiff’s Allegations

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II.

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Plaintiff is currently incarcerated at Salinas Valley State Prison in Soledad, California.

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The events in the complaint are alleged to have occurred while Plaintiff was incarcerated at

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Corcoran State Prison in Corcoran, California. Plaintiff appears to name the following

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defendants: Warden D. Davey; CMO of Corcoran State Prison, and Medical Executive of

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Corcoran State Prison. The complaint states, in total, the following:

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I’m under multiple violation of my right 1st 5th 6th 14th amendment hindering
outgoing mail, denied adequate medical care, 8th amendment violation victim of
assault and battery. Having problem with my back, need a cane to walk. I
receive injury, breach of contract. I completed int[e]rnal administrative process.
Is medical malpractice. See attach declaration and/or summary judgment is
required. Victim of appeal restriction victim of assault and battery by 27 officers
at Corcoran State Prison.

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(ECF No. 1, p. 3.)
Although Plaintiff references a declaration in his statement of his claim, there was no

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declaration attached to the complaint. Plaintiff seeks monetary damages and sues defendants in
their official and individual capacities. (Id.)
III.

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On January 20, 2016, Plaintiff filed Martinez v. Davey, et al., No. 1:16-cv-00084-LJO-

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BAM (“Martinez I”).1 The complaint filed in Martinez I is nearly identical to the complaint
Plaintiff later filed in the instant action. The only differences between the complaint filed in
Martinez I and the complaint form in the instant action are the addition of a sentence at the end of
the Statement of Claim, the removal of any reference to the Clerk of the Court for the Northern
District, and the updating of the date on the signature page. (See Martinez I, Compl., Docket No.
1, pp. 1–4; ECF No. 1, pp. 1–4.)
On August 9, 2016, the Court dismissed the complaint with leave to amend. (Martinez I,

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Pending Action

Order Dismissing Compl. with Leave to Amend, Docket No. 25.) Plaintiff filed a first amended
complaint on December 1, 2016. (Martinez I, First Am. Prisoner Civil Rights Compl., Docket
No. 37.) The first amended complaint has not yet been screened.
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The Court takes judicial notice of the files in that case. Fed. R. Evid. 201.

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IV.

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Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to

Discussion

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dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United

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States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574

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(10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir. 1993); Bailey v. Johnson, 846

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F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or

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previously litigated claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d

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at 1105 n.2; Bailey, 846 F.2d at 1021. “Dismissal of the duplicative lawsuit, more so than the

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issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the

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comprehensive disposition of litigation.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684,

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688, 692–94 (9th Cir. 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904

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(2008).

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To assess whether a claim is duplicative, courts use the test for claim preclusion. “Thus,

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in assessing whether the second action is duplicative of the first, we examine whether the causes

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of action and relief sought, as well as the parties or privies to the action, are the same.” Adams,

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487 F.3d at 689 (citations omitted). “Plaintiffs generally have no right to maintain two separate

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actions involving the same subject matter at the same time in the same court and against the same

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defendant.” Id. at 688 (internal quotations and citations omitted).

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As discussed above, the complaint in Martinez I is nearly identical to the complaint form

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filed in the instant case. The same defendants are named, and the same facts are alleged, except

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for the addition of a sentence in the Statement of Claim section. In both cases, Plaintiff raises

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nearly the same claims, apparently arising out of the same events, involving the same parties, and

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infringing upon the same rights. To the extent that Plaintiff pleaded additional facts in this action,

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he had the opportunity to include those facts in the first amended complaint filed in Martinez I.

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Therefore, the Court finds that this case is duplicative of Plaintiff’s prior current pending

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case because the claims, parties, and requested relief do not significantly differ between the two

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actions.

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V.

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For the reasons stated, it is HEREBY ORDERED that Plaintiff show cause why this

Conclusion and Order

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action should not be dismissed as duplicative within twenty-one (21) days of the date of service

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of this order. Failure to comply with this order will result in dismissal of this action, as

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duplicative, with prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 5, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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