Bockari v. Chase Bank
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/7/2015 RECOMMENDING that Plaintiff's 2 application to proceed IFP be denied. Plaintiff's 1 complaint be dismissed without prejudice. Plaintiff's 3 motion to consolidate be denied. This action be dismissed. Motions referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, K.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PATRICK A. BOCKARI,
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No. 2:14-cv-0019 JAM DAD PS
Plaintiff,
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v.
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CHASE BANK,
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FINDINGS AND RECOMMENDATIONS
Defendant.
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Plaintiff Patrick Bockari is proceeding in this action pro se. This matter was referred to
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the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff
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has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
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Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C. §
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1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis
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status does not complete the inquiry required by the statute. “‘A district court may deny leave to
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proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that
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the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th
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Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See
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also Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court to
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examine any application for leave to proceed in forma pauperis to determine whether the
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proposed proceeding has merit and if it appears that the proceeding is without merit, the court is
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bound to deny a motion seeking leave to proceed in forma pauperis.”).
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Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of
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poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to
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state a claim on which relief may be granted, or seeks monetary relief against an immune
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defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an
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arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.
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Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a
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complaint as frivolous where it is based on an indisputably meritless legal theory or where the
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factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
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To state a claim on which relief may be granted, the plaintiff must allege “enough facts to
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state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
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true the material allegations in the complaint and construes the allegations in the light most
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favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.
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Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
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(9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true
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conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
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Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
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The minimum requirements for a civil complaint in federal court are as follows:
A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks.
FED. R. CIV. P. 8(a).
Here, plaintiff’s complaint alleges that on December 31, 2013, the defendant, “without
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notice placed a restriction” on his bank account and “refused to release the funds.” (Compl. (Dkt.
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No. 1) at 2.) Plaintiff alleges that he believes the restriction was placed in “retaliation for a civil
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complaint filed in this court against the defendant for stealing [his] money back in 2010.” (Id.)
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Based solely on this allegation, plaintiff seeks $250,000 in damages. (Id) Plaintiff has also filed
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a motion to consolidate this action with the matter of Patrick A. Bockari v. JP Morgan Chase
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Bank, No. 2:13-cv-2603 JAM EFB, which is currently pending in this court. (Dkt. No. 3.) In that
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pending action, plaintiff’s first amended complaint alleges, in part, that on December 31, 2013,
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defendant Chase Bank retaliated against plaintiff by putting a restriction on his bank account.
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Plaintiff seeks the award of $800,000 in damages in this other action pending in this court.
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Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to
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dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United
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States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574
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(10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir.1993); Bailey v. Johnson, 846
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F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or
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previously litigated claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d
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at 1105 n. 2; Bailey, 846 F.2d at 1021. Repeating the same factual allegations asserted in an
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earlier case, even if now filed against new defendants, is subject to dismissal as duplicative. See,
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e.g., Bailey, 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975).
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“Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of
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proceedings, promotes judicial economy and the comprehensive disposition of litigation.” Adams
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v. California, 487 F.3d 684, 688, 692 (9th Cir. 2007). “[I]n assessing whether the second action
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is duplicative of the first, we examine whether the causes of action and relief sought, as well as
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the parties or privies to the action, are the same.” (Id. at 689.)
Here, plaintiff’s complaint in this action raises the same allegations against the same
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defendant and is seeking the same type of relief as that sought in Patrick A. Bockari v. JP Morgan
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Chase Bank, No. 2:13-cv-2603 JAM EFB. In both actions plaintiff complains that on December
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31, 2013, defendant Chase Bank retaliated against plaintiff by putting a restriction on his bank
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account. The undersigned finds, therefore, that this action should be dismissed as duplicative of
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his earlier filed action in this court.
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CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff’s January 3, 2014 application to proceed in forma pauperis (Dkt. No.
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2) be denied;
2. Plaintiff’s January 3, 2014 complaint (Dkt. No. 1) be dismissed without
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prejudice;
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3. Plaintiff’s February 23, 2015 motion to consolidate be denied; and
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4. This action be dismissed.
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These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)
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days after being served with these findings and recommendations, plaintiff may file written
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objections with the court. A document containing objections should be titled “Objections to
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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file
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objections within the specified time may, under certain circumstances, waive the right to appeal
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the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: July 7, 2015
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DAD:6
Ddad1\orders.pro se\bockari0019.ifp.dup.f&rs.docx
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