Battiste v. Duel Vocational Institution

Filing 11

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/11/10 ORDERING that Clerk of the Court is directed to randomly assign a United States District Judge to this action; and plaintiffs 9 motion for appointment of counsel is DENIED without prejudice to refiling in Case No. CIV S-09-2053 GGH P; RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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 The only defendant plaintiff has identified in the instant action that he did not identify in his complaint filed in Case No. CIV S-09-2053 GGH P is Deuel Vocational Institution ("DVI"). However, plaintiff cannot proceed against DVI in any event because, under the Eleventh Amendment, "agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court." Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). 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). 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA EDWARD ANTONIO BATTISTE, Plaintiff, vs. DVI et al., Defendants. / Plaintiff is a former state prisoner proceeding pro se. On October 6, 2009, plaintiff commenced this action by filing a complaint pursuant to 42 U.S.C. § 1983. The court's own records reveal that, on July 27, 2009, plaintiff filed a complaint containing virtually identical allegations against the same defendants.1 (Case No. CIV S-09-2053 GGH P).2 Due to the ///// ORDER AND FINDINGS AND RECOMMENDATIONS No. CIV S-09-2782 DAD P

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duplicative nature of the present action, the court will recommend that plaintiff's complaint be dismissed. IT IS HEREBY ORDERED that: 1. The Clerk of the Court is directed to randomly assign a United States District Judge to this action; and 2. Plaintiff's motion for appointment of counsel (Doc. No. 9) is denied without prejudice to refiling in Case No. CIV S-09-2053 GGH P. IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twentyone days after being served with these findings and recommendations, plaintiff may file written objections with the court. A document containing objections should be titled "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. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: February 11, 2010.

DAD:9 batt2782.23

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