Thomas v. Madera Superior Court et al

Filing 10

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/4/13 ORDERING that the Clerk of Court shall, in Case No. 13-cv-01891, file plaintiffs documents filed in the instant case, specifically, the documents filed on Sep tember 12, 2013 (ECF No. 1), September 26, 2013 (ECF No. 5), and September 30, 2013 (ECF No. 8); the Clerk of Court shall, in Case No. 13-cv-01891, provisionally designate these documents, respectively, as Plaintiffs Affidavit Nos. 2, 3 and 4. In addition, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYSHON THOMAS,

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Plaintiff,

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No. 2:13-cv-01897 JAM KJN P

v.
MADERA SUPERIOR COURT, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff, who is detained in the Madera County Jail, proceeds pro se in this action filed

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pursuant to 42 U.S.C. S 1983 and other cited legal authority. Plaintiff filed his first document in

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this action on September 12, 2013. However, the court’s records reveal that on September 11,

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2013, plaintiff a similar document in another action.1 See Thomas v. California Supreme Court et

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al., Case No. 2:13-cv-01891 GEB EFB P. Moreover, in his affidavit recently filed in the instant

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case, plaintiff states that the Clerk’s Office has “altered” his filings in the instant case, “in conflict

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with Case No. 2:13-cv-01891-EFB Magistrate Edmund F. Brennan;” and plaintiff declined to

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consent to the jurisdiction of the undersigned magistrate judge, commenting “why? two different

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defendant(s) names on separate cases that’s one case” (sic). (ECF No. 5 at 2.)

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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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Due to the apparently duplicative nature of plaintiff’s two pending actions, and the court’s

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policy of deferring to the first-filed case, the undersigned will recommend that the instant case be

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dismissed without prejudice. In the meantime, the court will order that the three documents

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plaintiff filed in the instant case be filed in plaintiff’s first-filed action.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall, in Case No. 13-cv-

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01891, file plaintiff’s documents filed in the instant case, specifically, the documents filed on

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September 12, 2013 (ECF No. 1), September 26, 2013 (ECF No. 5), and September 30, 2013

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(ECF No. 8); the Clerk of Court shall, in Case No. 13-cv-01891, provisionally designate these

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documents, respectively, as Plaintiff’s Affidavit Nos. 2, 3 and 4.2

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In addition, IT IS HEREBY 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 to this

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

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

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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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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: October 4, 2013

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thom1897.23

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Plaintiff has already filed one affidavit in Case No. 13-cv-01891.
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