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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LaKEITH LeROY McCOY, 12 13 14 15 Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al, 16 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. 17 18 Plaintiff LaKeith LeRo McCoy (“Plaintiff”) is a state prisoner proceeding pro se in this 19 action under 42 U.S.C. § 1983. This action was removed to this Court on November 23, 2016 20 from the Kern County Superior Court. (ECF No. 1.) Plaintiff consented to the jurisdiction of a 21 United States Magistrate Judge. (ECF No. 4.) Plaintiff’s complaint is currently before the Court 22 for screening. 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C. 1 1 § 1915(e)(2)(B)(ii). Plaintiff’s Allegations 2 II. 3 Plaintiff is currently incarcerated at California Correctional Institution (“CCI”) in 4 Tehachapi, California. The events in the complaint are alleged to have occurred while Plaintiff 5 was incarcerated at CCI. Plaintiff names the CDCR, Tony Chavez, Kim Holland, Anthony 6 Steiber, M. Garikaparthi, and John Keeler, Plaintiff alleges that in March 2012 he was diagnosed 7 as being allergic to eggs. In summary, Plaintiff alleges that in and throughout 2013, Plaintiff was 8 not given food to accommodate his food allergy and as a result he lost weight and suffered other 9 harms as a result of food deprivation. 10 III. Another Pending Action 11 On September 16, 2013, Plaintiff filed McCoy v. M. Garkaparthi, et al., No. 1:13-cv- 12 01495-DAD-BAM (“McCoy I”).1 The complaint filed in McCoy I also complains of food 13 deprivation in and throughout 2013 at CCI. That claim is now pending following an appeal 14 before the Ninth Circuit Court of Appeals and denial of defendants’ motion to dismiss. See Doc. 15 19, 48, 49. 16 IV. 17 Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to Discussion 18 dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United 19 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 20 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir. 1993); Bailey v. Johnson, 846 21 F.2d 1019, 1021 (5th Cir. 1988). A complaint that merely repeats pending or previously litigated 22 claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d at 1105 n.2; 23 Bailey, 846 F.2d at 1021. “Dismissal of the duplicative lawsuit, more so than the issuance of a 24 stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive 25 disposition of litigation.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688, 692–94 (9th 26 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, 27 28 1 The Court takes judicial notice of the files in that case. Fed. R. Evid. 201. 2 1 in assessing whether the second action is duplicative of the first, we examine whether the causes 2 of action and relief sought, as well as the parties or privies to the action, are the same.” Adams, 3 487 F.3d at 689 (citations omitted). “Plaintiffs generally have no right to maintain two separate 4 actions involving the same subject matter at the same time in the same court and against the same 5 defendant.” Id. at 688 (internal quotations and citations omitted). 6 As discussed above, the complaint in McCoy I is nearly identical to the complaint filed in 7 the instant case. In both cases, Plaintiff raises nearly the same claims, apparently arising out of 8 the same events, involving the same parties, and infringing upon the same rights. 9 Therefore, the Court finds that this case is duplicative of Plaintiff’s prior current pending 10 case because the claims, parties, and requested relief do not significantly differ between the two 11 actions. 12 V. Conclusion and Order 13 For the reasons stated, it is HEREBY ORDERED that Plaintiff show cause why this 14 action should not be dismissed as duplicative within twenty-one (21) days of the date of service 15 of this order. Failure to comply with this order will result in dismissal of this action, as 16 duplicative, with prejudice. 17 18 19 IT IS SO ORDERED. Dated: /s/ Barbara June 13, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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