Muhammad v. Sisto et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/17/11 ORDERING that the Clerk of the Court is directed to randomly assign a district judge to this action; RECOMMENDING that Plaintiffs 23 motion to withdraw h is complaint, and 24 motion to close this action, be granted; Defendants 18 motion to dismiss this action, and 20 motion to have plaintiff declared a vexatious litigant, be denied as moot; and this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). Randomly assigned and referred to Judge John A. Mendez; Objections to F&R due within 21 days.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SHAKA SENEGAL MUHAMMAD,
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Plaintiff,
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No. 2:09-cv-0582 KJN P
vs.
D. K. SISTO, et al.,
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ORDER and
FINDINGS AND RECOMMENDATIONS1
Defendants.
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Presently pending before the court in this prisoner civil rights action are
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defendants’ motions to dismiss and to declare plaintiff a vexatious litigant, and plaintiff’s
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motions to withdraw his complaint and to close this action. Plaintiff states that he is about to be
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released from prison, anticipates being paroled outside of California, and no longer wishes to
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pursue this litigation. Plaintiff filed his motions after the court issued an order, on June 8, 2011,
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directing plaintiff to file an opposition to defendants’ motions. On June 16, 2011, the court
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issued the following order directing defendants’ response:
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Once defendants have appeared in an action, the action may be
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Although plaintiff has consented to the jurisdiction of the magistrate judge for all
purposes (Dkt. No. 3), defendants have not. Accordingly, this action is referred to a United
States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), Local General Order No. 262, and
E.D. Cal. L.R. (“Local Rule”) 302(c).
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dismissed at plaintiff’s request only by court order. Fed. R. Civ. P.
41(a)(2). “A district court should grant a motion for voluntary
dismissal under Rule 41(a)(2) unless a defendant can show that it
will suffer some plain legal prejudice as a result.” Smith v.
Lenches, 263 F.3d 972, 975 (9th Cir. 2001) (citing Waller v. Fin.
Corp. of Am., 828 F.2d 579, 583 (9th Cir. 1987) (fn. omitted).
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Defendants shall file, within seven days, a statement whether they
would be prejudiced by dismissal of this action, and by the
dismissal of defendants’ pending motions as moot; any averment
of prejudice must be specific to defendants herein and to this
litigation.
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(Dkt. No. 25 at 1-2.)
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In their reply to the court’s order, defendants ask the court to first rule on their
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motion to revoke plaintiff’s in forma pauperis status pursuant to 28 U.S.C. § 1915(g), and to
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declare plaintiff a vexatious litigant. Section 1915(g) authorizes a court to find that an
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incarcerated plaintiff has filed, on three or more prior occasions, actions that were dismissed as
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frivolous, malicious or for failure to a state a claim, and to thereby preclude the plaintiff from
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pursuing another action in forma pauperis absent a showing that he is under imminent danger of
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serious physical injury. 28 U.S.C. § 1915(g). A finding that a party is a vexatious litigant
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authorizes the court to order the party “to give a security, bond, or undertaking” pending final
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judgment in the action. See E.D. Cal. L.R. (“Local Rule”) 151 (b); Cal. Code Civ. Proc. §§
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391(b), 391.1.
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Defendants assert that plaintiff has filed 35 lawsuits in federal court since 1994, at
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least 10 of which have been dismissed for failure to state a claim; that plaintiff has three other
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active federal lawsuits currently pending against the California Department of Corrections and
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Rehabilitation (“CDCR”), none of which he has sought to voluntarily dismiss; and that it appears
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plaintiff seeks to withdraw the instant action merely “to evade incurring yet another strike”
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pursuant to Section 1915(g). (Dkt. No. 27 at 1.)
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Other than defendants’ general averment that the instant action, like plaintiff’s
other pending cases, challenges actions by CDCR, defendants have not satisfied the court’s
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directive that “any averment of prejudice must be specific to defendants herein and to this
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litigation.” (Dkt. No. 25 at 2.) Moreover, the instant defendants—four staff members at
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California State Prison-Solano—are represented by private counsel, pursuant to agreement with
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CDCR; counsel does not represent the California Department of Corrections and Rehabilitation.
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Absent a showing of prejudice to defendants in this action, the court will
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recommend that plaintiff’s request to voluntarily dismiss this case be granted, without ruling on
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defendants’ motions. It is unreasonable to revoke plaintiff’s in forma pauperis status before
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dismissing this action, or to require that plaintiff furnish a bond in this case that will not reach
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final judgment. While CDCR may wish to seek preclusive sanctions against plaintiff, it should
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do so in an action in which plaintiff remains an active participant.
The dismissal of this action should, however, be with prejudice, reflecting
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plaintiff’s statement that he no longer intends to pursue this litigation, and to accord adequate
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closure to defendants herein.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The Clerk of Court is directed randomly to assign a district judge to this action.
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Further, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s motion to withdraw his complaint (Dkt. No. 23), and motion to
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close this action (Dkt. No. 24), be granted;
2. Defendants’ motion to dismiss this action (Dkt. No. 18), and motion to have
plaintiff declared a vexatious litigant (Dkt. No. 20), be denied as moot; and
3. This action be dismissed with prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2).
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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"Objections to Magistrate Judge's Findings and Recommendations." Any response to the
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objections shall be filed and served within 14 days after service of the objections. The parties are
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advised that failure to file objections within the specified time may waive the right to appeal the
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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 17, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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muha0582.41(a)
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