Evans v. California Department of Corrections & Rehabilitation

Filing 13

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/13/2018 ORDERING the Clerk to randomly assign a district judge to this case and plaintiff's 12 motion to consolidate is DENIED for the reasons stated in the court's 12/12/2017 order. IT IS RECOMMENDED that this case be dismissed for plaintiff's failure to prosecute. Assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD ANTHONY EVANS,

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Plaintiff,

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No. 2:17-cv-1890 DB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS & REHABILITATION,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. In an order filed January 29, 2018, the court dismissed plaintiff’s complaint

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and gave him thirty days to file an amended complaint. (ECF No. 9.) Thirty days have passed

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and plaintiff has not filed an amended complaint or otherwise responded to the court’s January 29

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order. Plaintiff was warned that his failure to file an amended complaint would result in a

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recommendation that his case be dismissed. (See id. at 8.)
Also on January 29, plaintiff filed a second motion to consolidate this case with two other

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cases pending in this court. (ECF No. 12.) In an order dated December 12, 2017, the court

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denied plaintiff’s first motion to consolidate because he had not yet stated a cognizable claim in

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this action. (See ECF No. 8.) That is still true. The court has not found any claims cognizable

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under § 1983. Accordingly, the present motion to consolidate will be denied on the same

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grounds.

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In his motion to consolidate, plaintiff asks rather than seeking consolidation, he should

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move to amend his complaint in case no. 2:17-cv-1888 AC. Plaintiff states that he intended the

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three claims he filed to be docketed as one case, not three. This court cannot advise plaintiff on

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the correct course of action in another case. However, plaintiff is advised that all claims in one

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action should be related. Federal Rule of Civil Procedure 18(a) allows a party to “join, as

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independent or alternative claims, as many claims as it has against an opposing party.” However,

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Rule 20(a)(2) permits a plaintiff to sue multiple defendants in the same action only if “any right to

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relief is asserted against them jointly, severally, or in the alternative with respect to or arising out

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of the same transaction, occurrence, or series of transactions or occurrences,” and there is a

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“question of law or fact common to all defendants.” “Thus multiple claims against a single party

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are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against

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Defendant 2. Unrelated claims against different defendants belong in different suits . . .” George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g)).

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For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as
follows:

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1. The Clerk of the Court is directed to randomly assign a district judge to this case; and

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2. Plaintiff’s motion to consolidate (ECF No. 12) is denied for the reasons stated in the
court’s December 12, 2017 order.

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Further, IT IS RECOMMENDED that this case be dismissed for plaintiff’s failure to

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prosecute. See E.D. Cal. R. 110; Fed. R. Civ. P. 41.

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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)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: March 13, 2018

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DLB:9
DB/prisoner-civil rights/evan1890.fr

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