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)

Case 1:21-cv-01110-AWI-BAM Document 3 Filed 09/08/21 Page 1 of 4
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID PONCE,

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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.

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Plaintiff David Ponce (“Plaintiff”), proceeding pro se, filed this civil rights action on July

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22, 2021, along with an application to proceed in forma pauperis. (Docs. 1, 2.) By separate

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order, the Court has concurrently granted Plaintiff’s in forma pauperis application. Plaintiff’s

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complaint is currently before the Court for screening. (Doc. 1.)

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I.

Screening Requirement and Standard

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The Court screens complaints brought by persons proceeding pro se and in forma

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pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to

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dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be

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granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the
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Case 1:21-cv-01110-AWI-BAM Document 3 Filed 09/08/21 Page 2 of 4
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pleader is entitled to relief . . ..” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as

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true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

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572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiffs’ claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Serv., 572 F.3d 962, 969

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(9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678;

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Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff brings this action against a Hanford Police Department K-9 Unit officer. Plaintiff

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alleges excessive force in violation of the Fourth Amendment, denial of due process in violation

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of the Fifth Amendment and protection of his rights under the Ninth Amendment. Plaintiff’s

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claims arise from an incident on March 22, 2021, when a police officer allegedly released a K-9

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dog on Plaintiff without warning. Plaintiff asserts that he had over 62 dog teeth that ripped

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through his flesh, causing damage to his arms and butt, along with visible marks.

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III.

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On July 2, 2021, Plaintiff filed Ponce v. Hanford Police Department K-9 Unit, No. 1:21-

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Ponce v. Hanford Police Department K-9 Unit, No. 1:21-cv-01045-DAD-BAM

cv-01045 (hereinafter “Ponce I”).1

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In Ponce I, Plaintiff initially filed suit against the Hanford Police Department K-9 unit

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alleging violations of his Fourth, Fifth and Ninth Amendment rights. Plaintiff’s claims arise from

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an incident in which a police allegedly released a K-9 dog on Plaintiff, which resulted in Plaintiff

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receiving over 62 dog teeth that ripped through his flesh, causing damage to his arms and butt,

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along with visible marks. (See Ponce I, Doc. 1.)

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

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Case 1:21-cv-01110-AWI-BAM Document 3 Filed 09/08/21 Page 3 of 4
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The Court screened Plaintiff’s complaint in Ponce I on August 9, 2021, and granted him

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leave to amend. Plaintiff filed a first amended complaint on August 19, 2021. In his amended

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complaint, Plaintiff names the Hanford Police Department and Officer Scandura as defendants.

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He alleges a violation of his rights under the Fourth, Eighth and Ninth Amendments. Plaintiff’s

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claims arise from an incident on March 22, 2021, when a police officer released the K-9 dog on

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Plaintiff, which resulted in Plaintiff receiving over 62 bites. (See Ponce I, Doc. 5.) The Court

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screened Plaintiff’s first amended complaint on August 24, 2021, and granted Plaintiff a final

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opportunity to amend his complaint within thirty (30) days. (See Ponce I, Doc. 8.) Plaintiff has

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not yet filed an amended complaint.

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IV.

Discussion

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

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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, 692–93 (9th Cir.

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2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).

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“[I]n assessing whether the second action is duplicative of the first, we examine whether

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

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

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

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

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As discussed above, the original complaint in Ponce I is virtually identical in all material

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respects to the complaint filed in the instant case. In both cases, Plaintiff raises the same claims

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of excessive force, arising out of the same events, involving the same parties and defendants
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(Hanford Police Department and a K-9 officer), and infringing upon the same rights, including

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the Fourth Amendment. Therefore, the Court finds that this case should be dismissed because it

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is duplicative of Ponce I, his earlier filed, currently pending case.

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V.

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Based on the foregoing, the Court HEREBY RECOMMENDS that this action be

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Conclusion and Recommendation

dismissed as duplicative.
These Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after being served with these Findings and Recommendation, Plaintiff may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendation.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual

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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 7, 2021

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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