Branch v. Swarthout

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 5/1/2017 RECOMMENDING that this action be dismissed as duplicative. Referred to Judge John A. Mendez. Objections to F&R due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK CHARLES BRANCH,

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No. 2:15-cv-1704-JAM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

GARY SWARTHOUT,
Defendants.
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Plaintiff, a former state prisoner proceeding pro se, brings this civil rights action
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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or
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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief
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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,
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the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement
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of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means
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that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172,
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1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it

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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege

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with at least some degree of particularity overt acts by specific defendants which support the

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claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject
to 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). An in forma pauperis complaint that merely

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repeats pending or previously litigated claims may be considered abusive and dismissed under §

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1915. See id. “Plaintiffs generally have ‘no right to maintain two separate actions involving the

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same subject matter at the same time in the same court and against the same defendant.’” Adams

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v. Cal. Dept. Of Health Services, 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton

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Corp., 563 F.2d 66, 70 (3d Cir. 1977) (overruled on other grounds by Taylor v. Sturgell, 553 U.S.

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880 (2008)).

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Upon review of the complaint and the court’s docket, it appears this action is

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identical to another case plaintiff filed in this court, Branch v. Swarthout, 2:15-cv-0528-EFB.

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That prior case was dismissed with prejudice on July 6, 2015. Plaintiff then filed this duplicative

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action on August 10, 2015. In both cases, plaintiff is challenging the length of his confinement.

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He contends he should have been released from prison by November 14, 2007, but that he was

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illegally confined until September 12, 2014. The complaints filed in both actions are nearly

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identical. Thus, this action should be dismissed as duplicative.

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In addition, as set forth in the decision dismissing the prior case, plaintiff is

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attempting to challenge the length of his confinement which sounds in habeas, not a § 1983

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action. See 28 U.S.C. § 2254, Preiser v. Rodriguez, 411 U.S. 475 (1973). Where a § 1983 action
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seeking monetary damages or declaratory relief alleges constitutional violations which would

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necessarily imply the invalidity of the prisoner’s underlying conviction or sentence, or length of

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confinement, such a claim is not cognizable under § 1983 unless the conviction or sentence has

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first been invalidated on appeal, by habeas petition, or through some similar proceeding. See

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Heck v. Humphrey, 512 U.S. 477, 483-84 (1994). The court previously determined plaintiff had

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challenged the length of his sentence in a federal habeas action filed in the Southern District of

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California, which was denied. See Order, Doc. 7, Branch v. Swarthout, 2:15-cv-0528-EFB.

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Thus, because his sentence was not reversed or invalidated, his § 1983 challenge is Heck-barred.1

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Based on the foregoing, the undersigned recommends that this action be dismissed

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as duplicative of Branch v. Swarthout, 2:15-cv-0528-EFB.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 1, 2017

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______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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The court also found the doctrine of res judicata could also bar plaintiff’s claim as
he had challenged the sentence in a habeas petition. The same could apply to this case. See
Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir. 1993) (per curiam).
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