Orosco v. Knipp et al

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 05/21/15 ORDERING the clerk of the court randomly assign a District Judge to this action. U.S. District Judge Troy L. Nunley randomly assigned to this action. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOE GALINDO OROSCO, JR.,

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No. 2:15-cv-958-EFB P

Petitioner,

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v.

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W. KNIPP, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Respondents.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. As explained below, the petition filed in this action is duplicative of a petition

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filed in an earlier action. Accordingly, this action should be dismissed as duplicative.

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A suit is duplicative if the “claims, parties, and available relief do not significantly differ

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between the two actions.” Barapind v. Reno, 72 F. Supp. 2d 1132, 1145 (E.D. Cal. 1999)

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(quoting Ridge Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572 F. Supp.

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1210, 1213 (N.D. Ill. 1983)). “When a complaint involving the same parties and issues has

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already been filed in another federal district court, the court has discretion to abate or dismiss the

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second action. Id. at 1144 (citation omitted). “Federal comity and judicial economy give rise to

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rules which allow a district court to transfer, stay, or dismiss an action when a similar complaint

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has already been filed in another federal court.” Id. at 1145 (citation omitted). “[I]ncreasing

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calendar congestion in the federal courts makes it imperative to avoid concurrent litigation in

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more than one forum whenever consistent with the right of the parties.” Crawford v. Bell, 599

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F.2d 890, 893 (9th Cir. 1979).

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On April 27, 2015, petitioner filed an application for a writ of habeas corpus in this

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district. See Orosco v. Knipp, No. 2:15-cv-902-MCE-DAD (E.D. Cal.), ECF No. 1. That petition

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challenges the November 2, 2012 judgment of conviction imposed by the Sacramento County

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Superior Court in Case No. 11F02194. The following day, petitioner commenced this action by

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filing a petition that appears to be identical to the petition he filed in the first action. See ECF No.

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1 (originally filed in the Fresno division of this court). Due to the duplicative nature of the

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

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initially commenced.
Accordingly, it is hereby ORDERED that the Clerk shall randomly assign a United States
District Judge to this case; and

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Further, it is hereby RECOMMENDED that this action be dismissed without prejudice.

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These findings and recommendations are 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)(l). Within fourteen days

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

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

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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

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

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1991). In his objections petitioner may address whether a certificate of appealability should issue

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in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases in the United States District Courts (the district court must issue or deny a

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certificate of appealability when it enters a final order adverse to the applicant).

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DATED: May 21, 2015.

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