Turner v. Byer

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/3/2017 ORDERING Clerk of Court to assign a district judge to this case and file 2 Motion to Proceed IFP, without the CM/ECF banner, in 2:17-cv-1869 EFB and RECOMMENDING this action be dismissed without prejudice. Assigned and referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAFONZO R. TURNER, 12 No. 2:17-cv-1978 KJN P Plaintiff, 13 v. 14 S. BYER, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendant. 16 Plaintiff is a state prisoner, proceeding pro se. Plaintiff’s complaint was filed with the 17 18 court on September 25, 2017. The court’s own records reveal that on September 8, 2017, plaintiff 19 filed a complaint containing virtually identical allegations. (2:17-cv-1869 EFB).1 Except for the 20 proof of service on page 8 filed in the earlier action, the instant complaint appears to be a copy of 21 the complaint filed in 2:17-cv-1869 EFB, and both complaints were signed on September 5, 2017. 22 Indeed, the complaint filed in the instant action bears plaintiff’s note at the top of page one: 23 “Inmate’s Copy -- Returned Filed.” (ECF No. 1 at 1.) Due to the duplicative nature of the 24 present action, the court recommends that the complaint in this case be dismissed. In addition, because it appear plaintiff may have intended his request to proceed in forma 25 26 27 28 pauperis to accompany his initial complaint, and his request is also signed September 5, 2017, the 1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 1 Clerk of the Court is directed to file plaintiff’s September 25, 2017 motion to proceed in forma 2 pauper, without the instant case banner, in his prior case, No. 2:17-cv-1869 EFB. 3 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to: 4 1. Assign a district judge to this case; and 5 2. File plaintiff’s motion to proceed in forma pauperis (ECF No. 2), without the CM/ECF 6 7 8 9 banner, in his earlier case, No. 2:17-cv-1869 EFB. IT IS RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). These findings and recommendations are submitted to the District Judge assigned to this 10 case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served 11 with these findings and recommendations, plaintiff may file written objections with the court. 12 The document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 14 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 15 Cir. 1991). 16 Dated: October 3, 2017 17 18 19 turn1978.23 20 21 22 23 24 25 26 27 28 2

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