Bird v. Skillman, et al.

Filing 4

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/25/2017 RECOMMENDING that this action be dismissed. Objections due within 14 days after being served with these findings and recommendations. Referred to Judge Troy L. Nunley. (Hunt, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD M. BIRD,

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Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

SKILLMAN, et al.,
Defendants.

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No. 2:17-cv-2018-TLN-CMK

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Plaintiff, proceeding pro se, brings this civil action. Pending before the court is
plaintiff’s complaint (Doc. 1).
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 is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, 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. §§ 1915(e)(2)(A), (B) and

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1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h), this court must
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dismiss an action “[w]henever it appears . . . that the court lacks jurisdiction of the subject matter

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. . . .” Because plaintiff, who is not a prisoner, has been granted leave to proceed in forma

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pauperis, the court will screen the complaint pursuant to § 1915(e)(2).

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Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject

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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 two other cases plaintiff has filed in this court, Bird v. County of Tehama, et al., case

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number 2:13-cv-2549-MCE-CKD, and Bird v. Skillman, et al., case number 2:16-cv-2352-GEB-

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CMK. The prior cases were dismissed on March 4, 2014, and March 30, 2017, respectively.

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Plaintiff then filed this duplicative action on September 29, 2017. In all three cases, plaintiff is

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challenging his citation for fishing without a license, and the consequences therefrom. The

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complaints filed in the actions are nearly, if not actually, identical. Thus, this action should be

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dismissed as duplicative.

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In addition, as set forth in the prior decisions, plaintiff’s attempt to challenge his

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conviction for unlawful fishing in an action under 42 U.S.C. § 1983 is barred by Heck v.

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Humphrey, 512 U.S. 477 (1994). As the complaint filed in this case is essentially identical to the

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complaint filed in his previous case, there is nothing to indicate he has successfully had his

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conviction overturned. Instead, plaintiff includes an unclear argument regarding his standing,

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which does not cure the defect in his case.
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Based on the foregoing, the undersigned recommends that this action be dismissed

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as duplicative of Bird v. County of Tehama, et al., case number 2:13-cv-2549-MCE-CKD, and

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Bird v. Skillman, et al., case number 2:16-cv-2352-GEB-CMK.

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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: October 25, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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