McCoy v. California Department of Corrections and Rehabilitation et al

Filing 5

ORDER to SHOW CAUSE why action should not be dismissed as duplicate,signed by Magistrate Judge Barbara A. McAuliffe on 06/13/2017. Show Cause Response due 21-Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LaKEITH LeROY McCOY,

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Plaintiff,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al,

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Case No. 1:16-cv-01783-BAM (PC)
ORDER TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED AS
DUPLICATIVE
(ECF No. 1)
TWENTY-ONE (21) DAY DEADLINE

Defendants.

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Plaintiff LaKeith LeRo McCoy (“Plaintiff”) is a state prisoner proceeding pro se in this

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action under 42 U.S.C. § 1983. This action was removed to this Court on November 23, 2016

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from the Kern County Superior Court. (ECF No. 1.) Plaintiff consented to the jurisdiction of a

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United States Magistrate Judge. (ECF No. 4.) Plaintiff’s complaint is currently before the Court

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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).
Plaintiff’s Allegations

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II.

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Plaintiff is currently incarcerated at California Correctional Institution (“CCI”) in

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Tehachapi, California. The events in the complaint are alleged to have occurred while Plaintiff

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was incarcerated at CCI. Plaintiff names the CDCR, Tony Chavez, Kim Holland, Anthony

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Steiber, M. Garikaparthi, and John Keeler, Plaintiff alleges that in March 2012 he was diagnosed

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as being allergic to eggs. In summary, Plaintiff alleges that in and throughout 2013, Plaintiff was

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not given food to accommodate his food allergy and as a result he lost weight and suffered other

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harms as a result of food deprivation.

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III.

Another Pending Action

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On September 16, 2013, Plaintiff filed McCoy v. M. Garkaparthi, et al., No. 1:13-cv-

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01495-DAD-BAM (“McCoy I”).1 The complaint filed in McCoy I also complains of food

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deprivation in and throughout 2013 at CCI. That claim is now pending following an appeal

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before the Ninth Circuit Court of Appeals and denial of defendants’ motion to dismiss. See Doc.

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19, 48, 49.

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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). A complaint that merely repeats pending or previously litigated

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claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d at 1105 n.2;

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Bailey, 846 F.2d at 1021. “Dismissal of the duplicative lawsuit, more so than the issuance of a

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stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive

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disposition of litigation.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688, 692–94 (9th

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Cir. 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).
To assess whether a claim is duplicative, courts use the test for claim preclusion. “Thus,

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The Court takes judicial notice of the files in that case. Fed. R. Evid. 201.

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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 McCoy I is nearly identical to the complaint filed in

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the instant case. In both cases, Plaintiff raises nearly the same claims, apparently arising out of

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the same events, involving the same parties, and infringing upon the same rights.

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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.

Conclusion and Order

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

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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 13, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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