Harris v. High Desert State Prison et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/8/2011 RECOMMENDING that this action be dismissed as duplicative and frivolous. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

LEE EDWARD HARRIS,
Plaintiff,

11
12

No. CIV S-10-1177 KJM EFB P

vs.

13

HIGH DESERT STATE PRISON, et al.,

14

Defendants.
/

15
16

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action

17

brought under 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302

18

pursuant to 28 U.S.C. § 636(b)(1). Plaintiff commenced this action on May 13, 2010. Dckt. No.

19

1. On March 21, 2011 the court dismissed plaintiff’s complaint for failure to state a claim after

20

reviewing it pursuant to 28 U.S.C. § 1915A. Dckt. No. 19. Plaintiff has since filed a first

21

amended complaint and a second amended complaint, which do not differ in any material

22

respects. Dckt. Nos. 22, 24.

23

Federal courts must engage in a preliminary screening of cases in which prisoners seek

24

redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

25

§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

26

of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
1

1

relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

2

relief.” Id. § 1915A(b).

3

In this action, plaintiff seeks compensation from defendant Sisson for his placement in

4

the Security Housing Unit since September 16, 2008. Dckt. Nos. 22, 24. Having reviewed the

5

first and second amended complaints in this action, the court finds this action should be

6

dismissed as frivolous because it is duplicative of an earlier filed action that plaintiff is now

7

litigating in this court. Dckt. No. 24. See Harris v. High Desert State Prison, No. Civ. S-10-

8

1031 JAM EFB Dckt. Nos. 1 (April 15, 2010 original complaint), 12 (October 20, 2010 amended

9

complaint regarding placement in Security Housing Unit on September 16, 2008), 32 (screening

10

order allowing action to proceed on due process claim against defendant Sisson).1 See 28 U.S.C.

11

§ 1915A(b)(1); see also Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (A

12

complaint that “merely repeats pending or previously litigated claims” may be dismissed as

13

frivolous under the authority of 28 U.S.C. § 1915). A suit is duplicative if the “claims, parties,

14

and available relief do not significantly differ between the two actions.” Barapind v. Reno, 72 F.

15

Supp.2d 1132, 1145 (E.D. Cal. 1999) (quoting Ridge Gold Standard Liquors, Inc. v. Joseph E.

16

Seagram & Sons, Inc., 572 F. Supp. 1210, 1213 (N.D. Ill. 1983)). “When a complaint involving

17

the same parties and issues has already been filed in another federal district court, the court has

18

discretion to abate or dismiss the second action. Id. at 1144 (citation omitted). “Federal comity

19

and judicial economy give rise to rules which allow a district court to transfer, stay, or dismiss an

20

action when a similar complaint has already been filed in another federal court.” Id. at 1145

21

(citation omitted). “[I]ncreasing calendar congestion in the federal courts makes it imperative to

22

avoid concurrent litigation in more than one forum whenever consistent with the right of the

23

parties.” Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979). Due to the duplicative nature of

24

the present action, this action should be dismissed and plaintiff should proceed on the action he

25
1

26

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 504 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
2

1
2
3

initially commenced.
Accordingly, it is hereby RECOMMENDED that this action be dismissed as duplicative
and frivolous.

4

These findings and recommendations are submitted to the United States District Judge

5

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

6

after being served with these findings and recommendations, any party may file written

7

objections with the court and serve a copy on all parties. Such a document should be captioned

8

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

9

within the specified time may waive the right to appeal the District Court’s order. Turner v.

10

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

11

Dated: November 8, 2011.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3