McCoy v. California Department of Corrections and Rehabilitation et al

Filing 6

ORDER Directing Clerk of Court to Randomly Assign District Judge -CASE ASSIGNED to District Judge Dale A. Drozd and Magistrate Judge Barbara A. McAuliffe. New Case No. 1:16-cv-01783 DAD BAM (PC); FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action as Duplicative 1 , 5 , signed by Magistrate Judge Barbara A. McAuliffe on 7/28/17: 14-Day Deadline. (Hellings, J)

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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 16 17 Plaintiff, Case No. 1:16-cv-01783-BAM (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION AS DUPLICATIVE (ECF Nos. 1, 5) Defendants. FOURTEEN (14) DAY DEADLINE 18 FINDINGS AND RECOMMENDATIONS 19 Plaintiff LaKeith LeRoy McCoy (“Plaintiff”) is a state prisoner proceeding pro se in this 20 action under 42 U.S.C. § 1983. This action was removed to this Court on November 23, 2016 21 from the Kern County Superior Court. (ECF No. 1.) 22 23 On June 13, 2017, the Court screened Plaintiff’s complaint and found it duplicative of Plaintiff’s prior pending case, McCoy v. M. Garkaparthi, et al., No. 1:13-cv-01495-DAD-BAM. 24 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B)(ii). The Court therefore issued an order for 25 Plaintiff to show cause, within twenty-one days after service, why this action should not be 26 dismissed as duplicative. (ECF No. 5.) More than twenty-one days have passed and Plaintiff has 27 failed to respond to the show cause order. Accordingly, the Court will recommend that this 28 1 1 action be dismissed as duplicative. 2 I. 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 5 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 6 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 7 relief from a defendant who is immune from such relief. Screening Requirement and Standard Plaintiff’s Allegations 8 II. 9 Plaintiff is currently incarcerated at California Correctional Institution (“CCI”) in 10 Tehachapi, California. The events in the complaint are alleged to have occurred while Plaintiff 11 was incarcerated at CCI. Plaintiff names the CDCR, Tony Chavez, Kim Holland, Anthony 12 Steiber, M. Garikaparthi, and John Keeler. Plaintiff alleges that in March 2012 he was diagnosed 13 as being allergic to eggs. In summary, Plaintiff alleges that in and throughout 2013, Plaintiff was 14 not given food to accommodate his food allergy and as a result he lost weight and suffered other 15 harms as a result of food deprivation. 16 III. 17 On September 16, 2013, Plaintiff filed McCoy v. M. Garkaparthi, et al., No. 1:13-cv- Another Pending Action 18 01495-DAD-BAM (“McCoy I”).1 The complaint filed in McCoy I also complains of food 19 deprivation in and throughout 2013 at CCI. That claim is now pending following an appeal 20 before the Ninth Circuit Court of Appeals and denial of defendants’ motion to dismiss. See Doc. 21 19, 48, 49. 22 IV. 23 Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to Discussion 24 dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United 25 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 26 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir. 1993); Bailey v. Johnson, 846 27 F.2d 1019, 1021 (5th Cir. 1988). A complaint that merely repeats pending or previously litigated 28 1 The Court takes judicial notice of the files in that case. Fed. R. Evid. 201. 2 1 claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d at 1105 n.2; 2 Bailey, 846 F.2d at 1021. “Dismissal of the duplicative lawsuit, more so than the issuance of a 3 stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive 4 disposition of litigation.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 692–93 (9th Cir. 5 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 6 To assess whether a claim is duplicative, courts use the test for claim preclusion. “Thus, 7 in assessing whether the second action is duplicative of the first, we examine whether the causes 8 of action and relief sought, as well as the parties or privies to the action, are the same.” Adams, 9 487 F.3d at 689 (citations omitted). “Plaintiffs generally have no right to maintain two separate 10 actions involving the same subject matter at the same time in the same court and against the same 11 defendant.” Id. at 688 (internal quotations and citations omitted). 12 As discussed above, the complaint in McCoy I is nearly identical to the complaint filed in 13 the instant case. In both cases, Plaintiff raises nearly the same claims, apparently arising out of 14 the same events, involving the same parties, and infringing upon the same rights. Although 15 Plaintiff was granted an opportunity to demonstrate why this action is not duplicative of McCoy I, 16 he did not respond. Therefore, the Court finds that this case should be dismissed because it is 17 duplicative of Plaintiff’s prior current pending case. 18 V. 19 Based on the foregoing, the Court HEREBY DIRECTS the Clerk of the Court to 20 21 22 23 Conclusion and Recommendation randomly assign a district judge to this action. Further, for the reasons stated, the Court HEREBY RECOMMENDS that this action be dismissed as duplicative. These Findings and Recommendation will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these Findings and Recommendation, the parties may file 26 written objections with the court. The document should be captioned “Objections to Magistrate 27 Judge’s Findings and Recommendation.” The parties are advised that failure to file objections 28 within the specified time may result in the waiver of the “right to challenge the magistrate’s 3 1 factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 2 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: /s/ Barbara July 28, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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