Calihan v. Dickinson et al

Filing 4

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/17/2013 DIRECTING the Clerk to assign a district judge to this action; and RECOMMENDING that this action be dismissed without prejudice. Assigned and Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)

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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 CALIHAN,

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Plaintiff,

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No. 2:13-cv-0929 KJN P

vs.
KATHLEEN DICKINSON, et al.,

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ORDER AND

Defendants.

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FINDINGS & RECOMMENDATIONS
/

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Plaintiff is a state prisoner proceeding without counsel. Plaintiff’s complaint was

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filed with the court on May 10, 2013. Plaintiff repeats some of the same allegations raised in

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Calihan v. Giurbino, 1:11-cv-0868 SKO PC (E.D. Cal.), concerning his alleged wrongful

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removal from the Departmental Review Board (“DRB”) transfer control, which resulted in the

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December 9, 2011 assault. (ECF No. 1 at 4-5.) However, on April 5, 2012, the court in Case

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No. 1:11-cv-0868 SKO PC, found that plaintiff failed to state a due process claim based on such

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allegations. (ECF No. 1 at 60-61.) For the reasons set forth in the April 5, 2012 order, plaintiff

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cannot state a cognizable due process claim based on this classification claim. (ECF No. 1 at

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61.) Thus, the court is unable to reinstate plaintiff’s DRB transfer control status. (ECF No. 1 at

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3.)

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It also appears that plaintiff is attempting to raise an Eighth Amendment claim

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concerning the December 9, 2011 assault. Plaintiff argues that defendants knew the perpetrator

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posed a risk of substantial harm to plaintiff yet failed to protect plaintiff from harm. (ECF No. 1

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at 5.) However, the court’s own records reveal that there are presently pending two other civil

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rights actions resulting from the December 9, 2011 assault: Calihan v. Knipp, 2:12-2356 KJM

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CMK (E.D. Cal.), and Calihan v. Cate, 2:12-2937 EFB (E.D. Cal.). On March 20, 2013, plaintiff

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filed an amended complaint in Case No. 2:12-2937 EFB, and alleged that defendant Knipp knew

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that plaintiff had severe safety concerns, yet failed to protect plaintiff from the December 9, 2011

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assault. (Id., Dkt. No. 14 at 2.) Although plaintiff names different defendants in this action,

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plaintiff must name all defendants and plead all claims resulting from the December 9, 2011

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assault in only one action.1 Plaintiff should seek leave to amend to name all parties he argues are

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responsible for the December 9, 2011 assault in only one case.2 Due to the duplicative nature of

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the allegations contained herein, the court will recommend that the complaint be dismissed.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to
assign a district judge to this case; and

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IT IS RECOMMENDED that this action be dismissed without prejudice. See
Fed. R. Civ. P. 41(b).

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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 days after being

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

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

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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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Some of the exhibits plaintiff filed in the instant action were also filed in Case No.
2:12-cv-2356 KJM CMK P (ECF No. 1-1 at 1-44.), in which plaintiff also named defendant
Knipp, and argued that defendant Knipp and other defendants failed to supervise correctional
staff on December 9, 2011.
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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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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: May 17, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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