Tracy, et al v. Sheehan, et al

Filing 23

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/2/09 ORDERING that the findings and recommendations, filed on May 29, 2008 20 , are VACATED; and RECOMMENDING that this action be DISMISSED as duplicative. Referred to Judge John A. Mendez. Objections due within 20 days after being served with these findings and recommendations. (Becknal, R) Modified on 7/6/2009 (Mena-Sanchez, L).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. SHEEHAN, et al., Defendants. / Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. The initial complaint in this action was filed by plaintiff Tracy and five other inmates at the Rio Cosumnes Correctional Center. On February 22, 2008, the court ordered that the claims be severed and that plaintiff Tracy proceed as the sole plaintiff in this case. His complaint was dismissed and plaintiff was ordered to file an amended complaint that set forth his individual claims. Despite additional time granted by the court on April 15, 2008, plaintiff failed to file his amended complaint and a new application requesting leave to proceed in forma pauperis. On May 29, 2008, the court filed findings and recommendations recommending that this action be dismissed without prejudice. On June 16, 2008, plaintiff filed a letter and requested that his case be put on "hold" until his anticipated release on August 17, 2008. (Letter, filed 6/16/08) at 1.) On July 1, 2008, plaintiff filed his amended complaint. ///// 1 ORDER AND FINDINGS & RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DAVID BRUCE TRACY, Plaintiff, No. CIV S-08-0121 JAM DAD P

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DAD:4 trac0121.23

The court's own records reveal that plaintiff's amended complaint filed on July 1, 2008, contain virtually identical allegations against the same defendants as those set forth in an earlier action filed by plaintiff in this court. See Tracey v. Sacramento County Sheriff Dep't, et al., Case No. Civ. S-08-0007 MCE DAD P.1 Due to the duplicative nature of the present action, the court will recommend that this action be dismissed. In addition, the court will vacate the findings and recommendations filed on May 29, 2008, as moot. In accordance with the above, IT IS HEREBY ORDERED that the findings and recommendations, filed on May 29, 2008 (Doc. No. 20), are vacated. Also, IT IS HEREBY RECOMMENDED that this action be dismissed as duplicative. See Fed. R. Civ. P. 41(b). These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: April 2, 2009.

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2

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