Smith v. Jones et al

Filing 3

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/16/12: Ordering that plaintiff's request for leave to proceed in forma pauperis is granted 2 . Recommending that this action be dismissed without prejudice as duplicative. F&R referred to Judge John A. Mendez. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH ARDELL SMITH,

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Plaintiff,

No. CIV S-12-0587 JAM GGH PS

vs.
SCOTT JONES, et al.,
Defendants.

ORDER AND FINDINGS &

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RECOMMENDATIONS

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Plaintiff is proceeding in this action pro se. Plaintiff has requested authority

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pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this

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court by E.D. Cal. L.R. 302(c)(21).

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Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that

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plaintiff is unable to prepay fees and costs or give security for them. (Dkt. No. 2.) Accordingly,

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the request to proceed in forma pauperis will be granted.

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Plaintiff’s complaint was filed with the court on March 6, 2012. The court’s own

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records reveal that on December 19, 2011, plaintiff filed a complaint containing virtually

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identical allegations involving Sacramento County Sheriff Department officers or bailiffs, except

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that plaintiff names the Sacramento Sheriff Department as the defendant in the 2011 action,
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whereas he names Scott Jones (as director of the Sacramento County Sheriff Department) and

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several individual officers/bailiffs as defendants in the instant 2012 action. (Compare Dkt. No. 1

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with Civ. No. S-11-3351 MCE JFM PS, Dkt. No. 1.)1 The 2011 complaint also contains more

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detailed factual allegations. Nevertheless, in both actions, plaintiff alleges that he was injured

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during a December 30, 1999 incident when officers/bailiffs Hicks, Lonteen, Burrow, and Shahda

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allegedly used excessive force on him, injured him, and refused him medical treatment. He

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further alleges that these officers/bailiffs falsified two felony criminal charges against him.

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Due to the duplicative nature of the present action, the court will recommend that

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the complaint be dismissed. If plaintiff wishes to add the above-mentioned individual officers or

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another party to the 2011 action, the proper course of action is to seek leave to amend his

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complaint in the 2011 action – not to file a new action.

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In accordance with the above, IT IS HEREBY ORDERED that plaintiff’s request
for leave to proceed in forma pauperis (dkt. no. 2) is granted.

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IT IS ALSO HEREBY RECOMMENDED that this action be dismissed without
prejudice as duplicative.

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These findings and recommendations are submitted to the District Judge assigned

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to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after

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being served with these findings and recommendations, plaintiff may file written objections with

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the court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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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).
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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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DATED: March 16, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH/wvr

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Smith.587.fr.dup.wpd

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