Ponce v. Hanford Police Department K-9 Unit

Filing 3

FINDINGS and RECOMMENDATIONS to Dismiss Action as Duplicative signed by Magistrate Judge Barbara A. McAuliffe on 09/07/2021. Referred to Judge Ishii; Objections to F&R due within Fourteen-Days. (Flores, E)

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Case 1:21-cv-01110-AWI-BAM Document 3 Filed 09/08/21 Page 1 of 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID PONCE, 12 13 14 15 Case No. 1:21-cv-01110-AWI-BAM Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION AS DUPLICATIVE v. (Doc. 1) HANFORD POLICE DEPARTMENT K-9 UNIT, FOURTEEN (14) DAY DEADLINE Defendant. 16 17 18 Plaintiff David Ponce (“Plaintiff”), proceeding pro se, filed this civil rights action on July 19 22, 2021, along with an application to proceed in forma pauperis. (Docs. 1, 2.) By separate 20 order, the Court has concurrently granted Plaintiff’s in forma pauperis application. Plaintiff’s 21 complaint is currently before the Court for screening. (Doc. 1.) 22 I. Screening Requirement and Standard 23 The Court screens complaints brought by persons proceeding pro se and in forma 24 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 25 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 26 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 27 U.S.C. § 1915(e)(2)(B)(ii). 28 A complaint must contain “a short and plain statement of the claim showing that the 1 Case 1:21-cv-01110-AWI-BAM Document 3 Filed 09/08/21 Page 2 of 4 1 pleader is entitled to relief . . ..” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 2 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 3 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 4 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 5 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 6 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 7 To survive screening, Plaintiffs’ claims must be facially plausible, which requires 8 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 9 for the misconduct alleged. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 10 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere 11 consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; 12 Moss, 572 F.3d at 969. Plaintiff’s Allegations 13 II. 14 Plaintiff brings this action against a Hanford Police Department K-9 Unit officer. Plaintiff 15 alleges excessive force in violation of the Fourth Amendment, denial of due process in violation 16 of the Fifth Amendment and protection of his rights under the Ninth Amendment. Plaintiff’s 17 claims arise from an incident on March 22, 2021, when a police officer allegedly released a K-9 18 dog on Plaintiff without warning. Plaintiff asserts that he had over 62 dog teeth that ripped 19 through his flesh, causing damage to his arms and butt, along with visible marks. 20 III. 21 On July 2, 2021, Plaintiff filed Ponce v. Hanford Police Department K-9 Unit, No. 1:21- 22 Ponce v. Hanford Police Department K-9 Unit, No. 1:21-cv-01045-DAD-BAM cv-01045 (hereinafter “Ponce I”).1 23 In Ponce I, Plaintiff initially filed suit against the Hanford Police Department K-9 unit 24 alleging violations of his Fourth, Fifth and Ninth Amendment rights. Plaintiff’s claims arise from 25 an incident in which a police allegedly released a K-9 dog on Plaintiff, which resulted in Plaintiff 26 receiving over 62 dog teeth that ripped through his flesh, causing damage to his arms and butt, 27 along with visible marks. (See Ponce I, Doc. 1.) 28 1 The Court takes judicial notice of the files in that case. Fed. R. Evid. 201. 2 Case 1:21-cv-01110-AWI-BAM Document 3 Filed 09/08/21 Page 3 of 4 1 The Court screened Plaintiff’s complaint in Ponce I on August 9, 2021, and granted him 2 leave to amend. Plaintiff filed a first amended complaint on August 19, 2021. In his amended 3 complaint, Plaintiff names the Hanford Police Department and Officer Scandura as defendants. 4 He alleges a violation of his rights under the Fourth, Eighth and Ninth Amendments. Plaintiff’s 5 claims arise from an incident on March 22, 2021, when a police officer released the K-9 dog on 6 Plaintiff, which resulted in Plaintiff receiving over 62 bites. (See Ponce I, Doc. 5.) The Court 7 screened Plaintiff’s first amended complaint on August 24, 2021, and granted Plaintiff a final 8 opportunity to amend his complaint within thirty (30) days. (See Ponce I, Doc. 8.) Plaintiff has 9 not yet filed an amended complaint. 10 IV. Discussion 11 Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to 12 dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United 13 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 14 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir. 1993); Bailey v. Johnson, 846 15 F.2d 1019, 1021 (5th Cir. 1988). A complaint that merely repeats pending or previously litigated 16 claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d at 1105 n.2; 17 Bailey, 846 F.2d at 1021. “Dismissal of the duplicative lawsuit, more so than the issuance of a 18 stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive 19 disposition of litigation.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 692–93 (9th Cir. 20 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 21 “[I]n assessing whether the second action is duplicative of the first, we examine whether 22 the causes of action and relief sought, as well as the parties or privies to the action, are the same.” 23 Adams, 487 F.3d at 689 (citations omitted). “Plaintiffs generally have no right to maintain two 24 separate actions involving the same subject matter at the same time in the same court and against 25 the same defendant.” Id. at 688 (internal quotations and citations omitted). 26 As discussed above, the original complaint in Ponce I is virtually identical in all material 27 respects to the complaint filed in the instant case. In both cases, Plaintiff raises the same claims 28 of excessive force, arising out of the same events, involving the same parties and defendants 3 Case 1:21-cv-01110-AWI-BAM Document 3 Filed 09/08/21 Page 4 of 4 1 (Hanford Police Department and a K-9 officer), and infringing upon the same rights, including 2 the Fourth Amendment. Therefore, the Court finds that this case should be dismissed because it 3 is duplicative of Ponce I, his earlier filed, currently pending case. 4 V. 5 Based on the foregoing, the Court HEREBY RECOMMENDS that this action be 6 7 Conclusion and Recommendation dismissed as duplicative. These Findings and Recommendation will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 9 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 10 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 12 specified time may result in the waiver of the “right to challenge the magistrate’s factual 13 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 14 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Barbara September 7, 2021 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 4

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