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)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK CHARLES BRANCH, 12 13 14 15 No. 2:15-cv-1704-JAM-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATION GARY SWARTHOUT, Defendants. / 16 Plaintiff, a former state prisoner proceeding pro se, brings this civil rights action 17 pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). 18 The court is required to screen complaints brought by prisoners seeking relief 19 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 20 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 21 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 22 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 23 the Federal Rules of Civil Procedure require that complaints contain a “short and plain statement 24 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means 25 that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 26 1 1 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 2 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 3 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 4 with at least some degree of particularity overt acts by specific defendants which support the 5 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 6 impossible for the court to conduct the screening required by law when the allegations are vague 7 and conclusory. 8 9 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 10 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). An in forma pauperis complaint that merely 11 repeats pending or previously litigated claims may be considered abusive and dismissed under § 12 1915. See id. “Plaintiffs generally have ‘no right to maintain two separate actions involving the 13 same subject matter at the same time in the same court and against the same defendant.’” Adams 14 v. Cal. Dept. Of Health Services, 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton 15 Corp., 563 F.2d 66, 70 (3d Cir. 1977) (overruled on other grounds by Taylor v. Sturgell, 553 U.S. 16 880 (2008)). 17 Upon review of the complaint and the court’s docket, it appears this action is 18 identical to another case plaintiff filed in this court, Branch v. Swarthout, 2:15-cv-0528-EFB. 19 That prior case was dismissed with prejudice on July 6, 2015. Plaintiff then filed this duplicative 20 action on August 10, 2015. In both cases, plaintiff is challenging the length of his confinement. 21 He contends he should have been released from prison by November 14, 2007, but that he was 22 illegally confined until September 12, 2014. The complaints filed in both actions are nearly 23 identical. Thus, this action should be dismissed as duplicative. 24 In addition, as set forth in the decision dismissing the prior case, plaintiff is 25 attempting to challenge the length of his confinement which sounds in habeas, not a § 1983 26 action. See 28 U.S.C. § 2254, Preiser v. Rodriguez, 411 U.S. 475 (1973). Where a § 1983 action 2 1 seeking monetary damages or declaratory relief alleges constitutional violations which would 2 necessarily imply the invalidity of the prisoner’s underlying conviction or sentence, or length of 3 confinement, such a claim is not cognizable under § 1983 unless the conviction or sentence has 4 first been invalidated on appeal, by habeas petition, or through some similar proceeding. See 5 Heck v. Humphrey, 512 U.S. 477, 483-84 (1994). The court previously determined plaintiff had 6 challenged the length of his sentence in a federal habeas action filed in the Southern District of 7 California, which was denied. See Order, Doc. 7, Branch v. Swarthout, 2:15-cv-0528-EFB. 8 Thus, because his sentence was not reversed or invalidated, his § 1983 challenge is Heck-barred.1 9 Based on the foregoing, the undersigned recommends that this action be dismissed 10 as duplicative of Branch v. Swarthout, 2:15-cv-0528-EFB. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court. Responses to objections shall be filed within 14 days after service of 15 objections. Failure to file objections within the specified time may waive the right to appeal. 16 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 DATED: May 1, 2017 19 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 1 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). 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?