-GBC (PC) Exmundo v. MTA Drew, et al, No. 1:2007cv01711 - Document 43 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gerald B. Cohn on 12/22/2011 recommending Dismissal of action with prejudice as duplicative of Civil actions 1:06-cv-00205 and 1:07-cv-01714. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 1/26/2012. (Lundstrom, T)

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-GBC (PC) Exmundo v. MTA Drew, et al Doc. 43 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 EMELITO EXMUNDO, 10 Plaintiff, 11 12 CASE NO. 1:07-cv-01711-LJO-GBC (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, AS DUPLICATIVE OF CIVIL ACTION NOS. 1:06-CV-00205 AND 1:07-CV-01714 v. MTA DREW, et al., 13 Defendants. / OBJECTIONS DUE WITHIN THIRTY DAYS 14 15 I. Procedural History 16 17 Plaintiff Emelito Exmundo (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis. 18 19 On February 23, 2006, Plaintiff filed a civil action in this Court, pursuant to 42 U.S.C. § 1983. See Emelito Exmundo v. A.K. Scribner, et al., 1:06-cv-00205-AWI-GBC (E.D. Cal). 20 21 On April 9, 2007, Plaintiff filed the instant action in California Superior Court, County of Kings, pursuant to 42 U.S.C. § 1983. Doc. 1. 22 On June 15, 2007, Plaintiff filed a third civil action in California Superior Court, County of 23 Kings, pursuant to 42 U.S.C. § 1983. See Emelito Exmundo v. Vella, et al., 1:07-cv-01714-AWI- 24 GBC (E.D. Cal). On November 21, 2007, Defendants removed Exmundo v. Vella to Federal Court. 25 See id. 26 On November 26, 2007, Defendants removed the instant action to Federal Court. Doc. 1. 27 On March 31, 2009, the Court ordered the consolidation of cases Exmundo v. Scribner, 28 1:06-cv-00205-AWI-GBC and Exmundo v. Vella, 1:07-cv-01714-AWI-GBC. Dockets.Justia.com 1 On June 19, 2009, in Exmundo v. Scribner, Plaintiff filed a second amended complaint. Doc. 2 32. On October 8, 2010, the Court screened Plaintiff’s complaint and required Plaintiff to amend his 3 complaint or notify the Court of willingness to proceed on only the cognizable claims. Doc 35. 4 On October 15, 2010, the Court ordered the joined cases severed. 5 On November 3, 2010, in Exmundo v. Scribner, Plaintiff notified the Court of his willingness 6 to proceed on only the cognizable claims. Doc 37. On November 15, 2010, the Court ordered that 7 the case proceed on only the cognizable claims against Defendants Bell and Johnson for excessive 8 force and dismissed the remaining claims and defendants. Doc 38. 9 On January 14, 2011, in Exmundo v. Vella, Plaintiff filed a second amended complaint. Doc. 10 26. On May 2, 2011, the Court screened Plaintiff’s claim and required Plaintiff to amend his 11 complaint or notify the Court of willingness to proceed on only the cognizable claims. Doc 28. On 12 May 12, 2011, Plaintiff notified the Court of his willingness to proceed on only the cognizable 13 claims. Doc 29. On August 31, 2011, the Court ordered that the case proceed on only the cognizable 14 claims against Defendant Vogel for excessive force and retaliation and dismissed the remaining 15 claims and defendants. Doc 31. 16 On October 5, 2011, Plaintiff filed his fourth amended complaint in the instant action. Doc. 17 42. For the reasons set forth below, the undersigned recommends dismissal of this action, with 18 prejudice, as duplicative of Civil Action Numbers 1:06-cv-00205 and 1:07-cv-01714. 19 II. Standard of Review 20 Pursuant to 28 U.S.C. § 1915A(a), the Court is required to screen prisoner complaints 21 seeking relief against a governmental entity, officer, or employee and must dismiss a complaint if 22 the action is frivolous, malicious, or fails to state a claim upon which relief may be granted. See 28 23 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Duplicative lawsuits filed by a plaintiff proceeding in forma 24 pauperis are subject to dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., 25 Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 26 F.3d 573, 574 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. 27 Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats 28 pending or previously litigated claims may be considered abusive and dismissed under § 1915. Cato, Page 2 of 11 1 70 F.3d at 1105 n.2; Bailey, 846 F.2d at 1021. Repeating the same factual allegations asserted in an 2 earlier case, even if now filed against new defendants, is subject to dismissal as duplicative. See, e.g., 3 Bailey, 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975). “Dismissal of 4 the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, 5 promotes judicial economy and the comprehensive disposition of litigation.” Adams v. California, 6 487 F.3d 684, 688, 692-94 (9th Cir. 2007). 7 III. Analysis 8 A. Plaintiff’s Complaints 9 1. Plaintiff’s Fourth Amended Complaint in the Instant Case 10 In Plaintiff’s fourth amended complaint, Plaintiff alleges interference with his mail, 11 retaliation, excessive force, insufficient due process, violations of prison policies, conspiracies, and 12 other state law claims. Pl. 4th Am. Compl., Doc 42. Plaintiff names the following Defendants: 13 California Department of Corrections and Rehabilitation (“CDCR”), R. Vella, D. G. Adams, S. Pina, 14 H. Q. Gadsden, R. Speidell, M. Drew, Cooper, Renteria, and Vogel. Id. at 1 & 10. 15 Plaintiff alleges that he filed a grievance against Defendant Renteria for opening his legal and 16 confidential mail. Id. at 3. Defendants Renteria and Cooper retailiated against Plaintiff for filing a 17 grievance by opening his legal and confidential mail and delaying giving Plaintiff his mail. Id. 18 Defendant Renteria refused to call Plaintiff to his assigned “Porter” job, arbitrarily only searched 19 Plaintiff before going into buildings, and gave Plaintiff’s niece’s letter to a child molester. Id. 20 Defendant Renteria said Plaintiff was in trouble for filing a grievance. Id. Defendants Renteria and 21 Drew retaliated against Plaintiff for filing a grievance by forcing Baeza to file an RVR for misuse 22 of food because Plaintiff was given an apple. Id. at 4. Defendant Drew gave Plaintiff the RVR during 23 the grievance hearing against Defendant Renteria to intimidate Plaintiff. Id. at 5. After the grievance 24 hearing, Defendants Cooper and Renteria then searched Plaintiff and went through his record while 25 requiring Plaintiff to keep his arms raised, causing Plaintiff great pain. Id. Defendant Renteria told 26 Plaintiff “you wrote me up, get out of the building,” preventing Plaintiff doing his job to assist the 27 ADA disabled inmates. Id. 28 On February 19, 2006, Defendant Drew ordered Defendant Cooper to body search Plaintiff, Page 3 of 11 1 and Defendant Cooper kicked Plaintiff’s feet and ankles apart, which aggravated Plaintiff’s earlier 2 injury from tripping on a sprinkler hole. Id. at 6. Defendant Drew told him he will continue to harass 3 him if he does not withdraw the grievance. Id. at 7. Plaintiff filed another grievance for this 4 retaliatory action. Id. On March 24, 2006, Defendant Pina interviewed Plaintiff for the grievance he 5 filed about the retaliations he is subject to by prison officials and their supervisors not doing anything 6 to stop it. Id. at 7. Defendant Pina retaliated against Plaintiff by filing a false RVR against him. Id. 7 On April 3, 2006, Defendant Speidell had the hearing for the RVR for “filing a false document.” Id. 8 at 8. Plaintiff was found guilty of the RVR, but the charges were unsupported and Plaintiff was 9 denied witnesses. Id. at 8-9. Defendants Vella and Speidell conspired to retaliate against Plaintiff 10 by filing frivolous RVRs. Id. at 9. Defendant Gadsden removed Plaintiff from his job because of 11 Defendant Vella, a wrongful termination. Id. Defendant Vella and the frivolous RVR caused Plaintiff 12 to be placed on C-status. Id. 13 On May 6, 2006, Plaintiff was extracted from his cell by order of Defendant Vella. Id. at 10. 14 Plaintiff was placed in administrative segregation. Id. When Defendant Vogel came to his cell, he 15 pulled Plaintiff’s arm, felt his right shoulder pop, and hit his head on the bunk. Id. Defendant Vogel 16 grabbed the back of Plaintiff’s neck and slammed his face into the concrete wall. Id. It was so strong 17 that it loosened his teeth and injured his neck. Id. at 11. Plaintiff’s injury required fusion surgery. Id. 18 He was in pain for three years before the surgery, and it took one and one-half years for the surgery 19 to heal. Id. The dentist had to pull four loose teeth. Id. The excessive force was retaliation and a 20 conspiracy with Defendant Vella. Id. Plaintiff alleges assault and battery. Id. at 12. 21 Plaintiff alleges retaliation for assisting with disabled inmates. Id. Plaintiff’s complaint seeks 22 the gym cleaned and wheelchair access to the side doors. Id. Prison officials removed him from 23 disability mobility impairment and stopped his pain treatment to his back because of his lawsuits. 24 Id. For relief, Plaintiff requests the Court expunge frivolous RVRs from his record; that he be 25 returned to his job with backpay; treatment for his neck and back injuries; a declaratory judgment; 26 an injunction; and damages. Id. at 3 & 13. 27 // 28 // Page 4 of 11 1 2. Plaintiff’s Second Amended Complaint in Exmundo v. Scribner, 1:06-cv-00205-AWI-GBC 2 In Exmundo v. Scribner, 1:06-cv-00205-AWI-GBC, Plaintiff filed a second amended claim 3 and then elected to proceed on the claims found cognizable by the Court against Defendants Bell and 4 Johnson for excessive force. Doc. 37. In Plaintiff’s second amended complaint, he makes allegations 5 of failure to protect, retaliation, insufficient due process, unlawful searches, frivolous RVRs, failure 6 to prevent theft of personal property, excessive force, conspiracy, wrongful placement in “C” status, 7 wrongful placement in administrative segregation, and deliberate indifference to medical care. Pl. 8 2nd Amend. Compl. at 7, Doc 32. Plaintiff names the following defendants: J.A. Tilton, D.D. Ortiz, 9 R. Vella, R. Rangel, R. Spriester, M. Rosenquist, S. Felder, R. Speidell, J. Kavanaugh, T. Hasadsri, 10 D. Robertson, R. Vogel, T.K. Moore, B. Bell, B. Johnson, D. Valtierra, S. Pina, R. Campbell, and 11 Castro. Id. at 4, 6, 15, 18, & 25. Plaintiff notes that the case was consolidated with Exmundo v. Vella, 12 1:07-cv-01714-AWI-GBC, and that defendants Vella, Hasadsri, Vogel, Johnson, and Adams 13 removed the case to federal court. Id. at 4. Plaintiff states that this complaint was a continuous and 14 perpetual violation of Plaintiff’s civil rights. Id. 15 Plaintiff alleges that on October 5, 2005, Defendants Bell and Johnson used excessive force 16 against Plaintiff after escorting him to his cell from the shower. Plaintiff alleges Defendants Bell and 17 Johnson kicked, body slammed, punched, and choked Plaintiff. Id. at 12. Plaintiff states that he lost 18 consciousness and was bleeding profusely from a cut on his foot. Id. Plaintiff states that after the 19 incident he complained of back pain and numb fingers and toes. Id. 20 Plaintiff further alleges that on February 15, 2006, Sgt. Drew dimmed the lights during a 21 grievance interview and made Plaintiff straddle a chair. Id. at 14. Sgt. Drew retaliated against 22 Plaintiff for filing a grievance by forcing Baeza to file an RVR for misuse of food because Plaintiff 23 was given an apple. Id. at 15. On February 21, 2006, Plaintiff filed a grievance for retaliation by Sgt. 24 Drew, C.O. Renteria, and C.O. Cooper. Id. On March 15, 2006, S. Pina conspired with Vella to file 25 a false RVR. Id. On April 3, 2006, Speidell conspired with Vella by violating his due process in the 26 grievance hearing and by filing a frivolous RVR. Id. at 15-16. On May 6, 2006, Vogel extracted 27 Plaintiff from his cell by order of Vella. Id. at 17. Vogel yanked Plaintiff’s arm with such force that 28 Page 5 of 11 1 he felt his right shoulder [pop]. Id. Plaintiff hit his head on the bunk and Vogel slammed Plaintiff’s 2 face into the concrete wall so hard that it loosened his teeth. Id. Lt. Gadsden told Plaintiff he had the 3 lock up order. Id. Vogel and Vella retaliated and conspired against Plaintiff by using excessive force 4 and placing Plaintiff in administrative segregation for filing grievances, for his “jailhouse lawyering” 5 activities, and for assisting inmates with disabilities. Id. at 22. 6 Plaintiff attached exhibits to his second amended complaint. Id. at 26-120. On December 12, 7 2005, Plaintiff filed a grievance that C.O. Cooper is not calling him to work as a porter. Id. at 86. On 8 January 12, 2006, Plaintiff filed a grievance against Renteria for refusing to accept his legal mail 9 without first inspecting the contents. Id. at 83. Plaintiff wrote that Renteria is delaying his mail in 10 retaliation for the times Plaintiff wrote to Lt. Gadsden and Sgt. Burgess about not being called to 11 work. Id. at 85-86. Renteria was arbitrarily searching Plaintiff, messing with his mail, and not calling 12 him for work. Id. On February 2, 2006, Plaintiff filed a grievance against C.O. Renteria for 13 harassment, delaying his legal mail, and obstructing his access to courts. Id. at 41. On February 21, 14 2006, Plaintiff filed a grievance against Sgt. Drew, Renteria, and Cooper for attempting to coerce 15 Plaintiff to withdraw a grievance. Id. at 91. Sgt. Drew ordered C.O. Cooper to body search Plaintiff, 16 and C.O. Cooper kicked Plaintiff’s feet and ankles apart, which aggravated Plaintiff’s earlier injury 17 from tripping on a sprinkler hole. Id. On March 15, 2006, Lt. Pina interviewed Plaintiff for an RVR 18 charging Plaintiff with falsification of documents. Id. at 96. Plaintiff alleged that Sgt. Drew 19 threatened Plaintiff to withdraw his appeal. Id. Plaintiff alleged that Renteria kicked Plaintiff out of 20 the building, preventing him from performing his job. Id. at 100. 21 For relief, Plaintiff requests the Court expunge frivolous RVRs from his record; that he be 22 transferred out of administrative segregation; that certain defendants be unable to work near Plaintiff; 23 a declaratory judgment; an injunction; and damages. Id. at 3 & 24. 24 // 25 // 26 // 27 // 28 // Page 6 of 11 1 3. Plaintiff’s Second Amended Complaint in Exmundo v. Vella, 1:07-cv-01714-AWI-GBC 2 In Exmundo v. Vella, 1:07-cv-01714-AWI-GBC, Plaintiff filed a second amended claim and 3 then elected to proceed on the claims found cognizable by the Court against Defendant Vogel for 4 excessive force and retaliation. Doc. 29. In Plaintiff’s second amended complaint, he makes 5 allegations of excessive force, retaliation for filing grievances, insufficient due process, an arbitrary 6 search, frivolous RVRs, conspiracy, wrongful placement in “C” status, wrongful placement in 7 administrative segregation, and deliberate indifference to medical care. Pl. 2nd Am. Compl. at 4-6, 8 8, Doc. 26. Plaintiff names the following defendants: J.A. Tilton, R. Vella, R. Vogel, and M. 9 Rosenquist. Id. at 1. Plaintiff alleges that Vogel used excessive force in retaliation for Plaintiff filing 10 grievances against Vella and Rosenquist. Id. at 4. Vella denied Plaintiff his due process during a 11 grievance hearing and wrongful placement in “C” status. Id. Vella, Vogel, and Rosenquist conspired 12 to transfer Plaintiff to administrative segregation. Id. C.O. Castro conducted an arbitrary search, 13 requiring Plaintiff to keep his arms raised, causing him pain. Id. at 4. Castro was sexually harassing 14 him because Plaintiff has long hair. Id. Plaintiff alleges excessive force against C.O. Bell and C.O. 15 Johnson. Id. at 5. Plaintiff filed a grievance against C.O. Renteria for delaying and reading his mail 16 and for giving a letter from his niece to a child molester. Id. Defendant Vella dimmed lights during 17 a grievance interview and made him straddle a chair. Id. On April 15, 2006, Defendant Vogel 18 interviewed Plaintiff, and Vella ordered Defendant Vogel to tell Plaintiff to withdraw the grievance. 19 Id. Defendant Vogel filed an RVR in retaliation for a grievance Plaintiff filed against Vogel and C.O. 20 Castro. Id. at 6. 21 On May 5, 2006, Vella, Vogel, and Rosenquist conspired to place Plaintiff in administrative 22 segregation. Id. at 7. Lt. Gadsden said he did not want to put Plaintiff in administrative segregation 23 but he could not disobey an order from Vella. Id. On May 6, 2006, Defendant Vogel extracted 24 Plaintiff from his cell, yanking his arm, and Plaintiff heard his shoulder pop. Id. He hit his head very 25 hard on the bunk. Id. Vogel grabbed the back of Plaintiff’s neck and slammed his face on the cement 26 so hard that Plaintiff broke his nose, hurt his forehead, and loosened two teeth. Id. 27 For relief, Plaintiff requests the Court to provide Plaintiff with adequate medical care for his 28 Page 7 of 11 1 neck, back, knees, and elbow; expunge frivolous RVRs from his record; that certain defendants be 2 unable to work near Plaintiff; a declaratory judgment; an injunction; and damages. Id. at 3 & 8-9. 3 B. Duplicative Claims 4 [I]n assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties or privies to the action, are the same . . . “There must be the same parties, or, at least, such as represent the same interests; there must be the same rights asserted and the same relief prayed for; the relief must be founded upon the same facts, and the . . . essential basis, of the relief sought must be the same.” Curtis v. Citibank, N.A., 226 F.3d 133 (2d Cir. 2000) (holding that the trial court did not abuse its discretion in dismissing Curtis II claims arising out of the same events as those alleged in Curtis I, which claims would have been heard if plaintiffs had timely raised them). Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223-24 (7th Cir. 1993) (“[A] suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions.”). 5 6 7 8 9 10 11 See Adams, 487 F.3d at 689. From a review of Plaintiff’s three cases, the Court finds that Plaintiff’s 12 instant case is duplicative because the claims, parties, and available relief do not significantly differ 13 between this case and the other two pending actions. In all three cases, Plaintiff alleges claims of 14 excessive force, retaliation, insufficient due process, and conspiracy. In all three cases, Plaintiff 15 states similar allegations against officers employed at California State Prison at Corcoran. In all three 16 cases, Plaintiff requests relief of expunging the frivolous RVRs from his record, equitable relief, and 17 damages. 18 In the instant case, Plaintiff’s allegations are duplicative of Exmundo v. Scribner, 19 1:06-cv-00205-AWI-GBC and Exmundo v. Vella, 1:07-cv-01714-AWI-GBC. First, Plaintiff alleges 20 that Renteria and Cooper interfered with Plaintiff’s mail in retaliation for filing grievances, prevented 21 him from doing his job as a porter, arbitrarily searched him, and gave his niece’s letter to a child 22 molester. Pl. 4th Am. Compl. at 3-4, Doc 42. Plaintiff made the same allegations in Exmundo v. 23 Scribner, Pl. 2nd Am. Compl. at 41, 83, 85-86, 91, 100, Doc. 32, and Exmundo v. Vella, Pl. 2nd Am. 24 Compl. at 5, Doc. 26. Second, Plaintiff alleges that Sgt. Drew and C.O. Cooper harassed Plaintiff, 25 filed a frivolous RVR against him, retaliated against him for filing a grievance, attempted to coerce 26 him into withdrawing his grievance, and kicked his feet apart while conducting a body search, 27 causing him pain. Pl. 4th Am. Compl. at 6-7, 91, Doc 42. Plaintiff made the same allegations in 28 Page 8 of 11 1 Exmundo v. Scribner, Pl. 2nd Am. Compl. at 14-15, 91, 96, Doc. 32. Third, Plaintiff alleges that 2 Pina, Vella, and Speidell conspired against Plaintiff, filed frivolous RVRs against him, harassed him, 3 and denied him due process during his grievance hearings. Pl. 4th Am. Compl. at 7-9, Doc 42. 4 Plaintiff made the same allegations in Exmundo v. Scribner, Pl. 2nd Am. Compl. at 15-16, 96, Doc. 5 32, and Exmundo v. Vella, Pl. 2nd Am. Compl. at 4-5, Doc. 26. Fourth, Plaintiff alleges that 6 Gadsden, Vella, and Vogel conspired to remove Plaintiff from his job, caused him to be placed in 7 C-status, caused him to be placed in administrative segregation, and used excessive force against him 8 by extracting him from his cell and injuring his teeth and neck. Pl. 4th Am. Compl. at 7-11, Doc 42. 9 Plaintiff made the same allegations in Exmundo v. Scribner, Pl. 2nd Am. Compl. at 17, 22, 85-86, 10 Doc. 32, and Exmundo v. Vella, Pl. 2nd Am. Compl. at 4-5, 7, Doc. 26. 11 Plaintiff’s fourth amended complaint in the instant case is essentially duplicative of his other 12 two pending cases, Exmundo v. Scribner, 1:06-cv-00205-AWI-GBC and Exmundo v. Vella, 13 1:07-cv-01714-AWI-GBC. Plaintiff’s complaint chronologizes an unending chain of allegations of 14 wrongdoing on the part of the correctional officers; grievances due to the alleged wrongdoing; and 15 retaliations resulting from his grievances. Plaintiff has made the same allegations in his two other 16 cases. Therefore, the claims in the instant case are duplicative of those in his two other pending 17 cases. 18 C. Privity Between Parties 19 An in forma pauperis complaint repeating the same factual allegations asserted in an earlier 20 case, even if now filed against new defendants, is subject to dismissal as duplicative. See Bailey, 846 21 F.2d at 1021; see also Van Meter v. Morgan, 518 F.2d at 368. Plaintiff’s fourth amended complaint 22 in the instant case names defendants CDCR, R. Vella, D. G. Adams, S. Pina, H. Q. Gadsden, R. 23 Speidell, M. Drew, Cooper, Renteria, and Vogel, who were also directly named or mentioned in his 24 other pending cases. In Exmundo v. Scribner, 1:06-cv-00205-AWI-GBC, the case is proceeding on 25 the claims against defendants Bell and Johnson for excessive force. Doc. 37. However, Plaintiff 26 made allegations against all of the named defendants in the instant case, or mentioned all of the 27 named defendants in the instant case, in his second amended complaint. Moreover, in response to 28 a motion to dismiss filed by the defendants for failure to exhaust, Plaintiff states that on February Page 9 of 11 1 2, 2006, he filed grievance against Renteria for retaliation of the grievances he filed against Bell and 2 Johnson. Pl. Resp. at 3, Doc. 48. 3 In Exmundo v. Vella, 1:07-cv-01714-AWI-GBC, the case is proceeding on the claims against 4 defendant Vogel for excessive force and retaliation. Doc. 29. In response to a motion to dismiss filed 5 by the defendant for failure to exhaust, Plaintiff cites the grievance he filed on May 23, 2006 against 6 Vella, Rosenquist, and H.Q. Gadsden for a retaliation conspiracy to transfer Plaintiff to 7 administrative segregation. Pl. Resp. at 13, Doc. 35. Plaintiff also attaches the January 12, 2006 and 8 February 2, 2006 grievances he filed against Renteria for retaliation, interference with his legal mail, 9 and interference with access to courts. Id. at 35 & 37. 10 Although Plaintiff filed Exmundo v. Vella on June 15, 2007, shortly after he filed the instant 11 action on April 9, 2007, the Court had consolidated Exmundo v. Vella with Exmundo v. Scribner, 12 which Plaintiff filed on February 23, 2006. Moreover, the sole remaining defendant in Exmundo v. 13 Vella has been served with the complaint and has filed a responsive pleading. Doc. 32. The instant 14 case is still in the screening stage, so it would not be in the interest of judicial economy to dismiss 15 Exmundo v. Vella and permit the instant case to move forward. 16 Finally, all the defendants are in privity with the other correctional officer defendants as 17 employees of the California State Prison in Corcoran. See Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 18 1405 (9th Cir. 1993); see also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940); 19 Adams, 487 F.3d at 691. In the instant case, Plaintiff also names defendant CDCR, which would 20 have Eleventh Amendment immunity, Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th 21 Cir. 2007), and D. G. Adams, the warden at Corcoran, who would not liable as a supervisor without 22 any direct participation in the deprivation of Plaintiff’s rights, Ashcroft v. Iqbal, 556 U.S. 662, __, 23 129 S. Ct. 1937, 1948-49 (2009). 24 // 25 // 26 // 27 // 28 // Page 10 of 11 1 IV. Conclusion and Recommendation 2 The Court finds that Plaintiff’s fourth amended complaint in the instant case is duplicative 3 of Plaintiff’s two other pending cases, Exmundo v. Scribner, 1:06-cv-00205-AWI-GBC and 4 Exmundo v. Vella, 1:07-cv-01714-AWI-GBC. Therefore, the Court hereby RECOMMENDS that 5 this action be DISMISSED WITH PREJUDICE as duplicative of Civil Action Numbers 6 1:06-CV-00205 and 1:07-CV-01714. 7 These Findings and Recommendations will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days 9 after being served with these Findings and Recommendations, Plaintiff may file written objections 10 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 11 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 12 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. 16 17 Dated: 0jh02o December 22, 2011 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 Page 11 of 11

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