Santellano v. Macy's Inc. et al

Filing 8

ORDER DISMISSING CASE. Signed by Judge Nathanael Cousins on 10/18/13. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 10/18/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 13-4369 NC (PR)

PAUL SANTELLANO,
Plaintiff,
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v.
8 MACY’S, INC., et al.,
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ORDER OF DISMISSAL

Defendants.

United States District Court
For the Northern District of California

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/

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This is a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff has requested
leave to proceed in forma pauperis (“IFP”).

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BACKGROUND
Plaintiff filed a later case in this court, Santellano v. Macy’s of California, et al., No.

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13-4551 NC (PR). Plaintiff perfected his IFP application in the later-filed action first.

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Consequently, the Court first reviewed the later-filed complaint (No. 13-4551 NC (PR))

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pursuant to 28 U.S.C. § 1915A.

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According to the complaint in No. 13-4551 NC (PR), on October 23, 2012, Plaintiff

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was arrested on the premises of a Macy’s department store. Plaintiff suffered a heart attack

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during the arrest. He was denied medical aid and was left in manacles for hours.

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On October 10, 2013, the Court dismissed said complaint with leave to amend noting

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that Plaintiff had not named as a defendant any individual or organization acting under color

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of state law, an essential element of a Section 1983 claim. The Court directed Plaintiff to file

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an amended complaint within 60 days, or by December 9, 2013.

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DISCUSSION
The complaint in the instant action is now before the Court for review pursuant to 28
U.S.C. § 1915A. The complaint contains the same claims and factual allegations stated in
No. 13-4551 NC (PR).

An in forma pauperis complaint that merely repeats pending or previously litigated

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claims may be considered abusive and dismissed. See Bailey v. Johnson, 846 F.2d 1019,

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1021 (5th Cir. 1988) (an in forma pauperis complaint repeating the same factual allegations

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asserted in an earlier case is subject to dismissal as duplicative); see also Cato v. United

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States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (dismissing duplicative complaint).

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Accordingly, this case will be dismissed as duplicative of Plaintiff’s case in No. 13-4551 NC

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(PR).

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The Court does note that the instant action names the Santa Clara Police Department
as a defendant and also links Santa Clara Police Officer Troy Johnsen to some of the

United States District Court
For the Northern District of California

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allegations in the complaint. These parties were not identified in No. 13-4551 NC (PR). If

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Plaintiff wishes to allege claims against said parties, and can do so in good faith, he must do

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so in the Court-ordered first amended complaint in No. 13-4551 NC (PR), discussed above.
CONCLUSION

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This action is DISMISSED as duplicative.

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The Clerk is directed to terminate all pending motions and close the file.

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No filing fee is due.

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IT IS SO ORDERED.
DATED: October 18, 2013
NATHANAEL M. COUSINS
United States Magistrate

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