(HC) Thomas v. Davis, No. 1:2015cv00126 - Document 7 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus as Duplicative of Earlier Filed Petition; ORDER Directing Clerk of Court to Assign District Judge to the Present Matter signed by Magistrate Judge Michael J. Seng on 01/26/2015. Referred to Judge O'Neill; Objections to F&R due by 3/2/2015. (Flores, E)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 Case No. 1:15-cv-00126 MJS (HC) MICHAEL EUGENE THOMAS, FINDINGS AND RECOMMENDATION TO Petitioner, DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS DUPLICATIVE OF EARLIER FILED PETITION 12 13 v. 14 15 16 RONALD DAVIS, Warden, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER Respondent. 17 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 On January 20, 2015, Petitioner filed a federal petition for writ of habeas corpus. 21 That petition was assigned case number “1:15-cv-00119 SAB HC,” and is currently 22 pending before the Court. In it, Petitioner presents two claims relating to his March, 1989 23 conviction: that the state court lacked jurisdiction; and, that there were defects in the 24 information and other documents filed in the case. 25 On January 20, 2015, Petitioner filed a second federal petition for writ of habeas 26 corpus. This petition has been assigned case number “1:15-cv-0126 MJS HC.” In the 27 instant petition, Petitioner presents similar, if not identical, jurisdictional challenges to his 28 1989 state court conviction. (Pet. at 5, ECF No. 1.) 1 1 “After weighing the equities of the case, the district court may exercise its 2 discretion to dismiss a duplicative later-filed action, to stay that action pending resolution 3 of the previously filed action, to enjoin the parties from proceeding with it, or to 4 consolidate both actions.” Adams v. California Dept. of Health Services, 487 F.3d 684, 5 688 (9th Cir. 2007). “Plaintiffs generally have ‘no right to maintain two separate actions 6 involving the same subject matter at the same time in the same court and against the 7 same defendant.’” Id. (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en 8 banc)). 9 In assessing whether a second action is duplicative of the first, the court 10 examines whether the causes of action and relief sought, as well as the parties or privies 11 to the action, are the same. Adams, 487 F.3d at 689. First, the court must examine 12 whether the causes of action in the two suits are identical pursuant to the transaction 13 test, developed in the context of claim preclusion. 14 whether the defendants are the same or in privity. Privity includes an array of 15 relationships which fit under the title of “virtual representation.” Kourtis v. Cameron, 419 16 F.3d 989, 996 (9th Cir. 2005). “The necessary elements of virtual representation are an 17 identity of interests and adequate representation.” 18 Kourtis, 419 F.3d at 996). “Additional features of a virtual representation relationship 19 include a close relationship, substantial participation, and tactical maneuvering.” Id. Id. Second, the court determines Adams, 487 F.3d at 691 (citing 20 A plaintiff is required to bring at one time all of the claims against a party or privies 21 relating to the same transaction or event. Adams, 487 F.3d at 693. The court has 22 discretion to dismiss a duplicative complaint with prejudice to prevent a plaintiff from 23 “fragmenting a single cause of action and litigating piecemeal the issues which could 24 have been resolved in one action.” Adams, 487 F.3d at 694. 25 In the present case, the instant petition challenges the same issues already being 26 adjudicated by the Court in case number “1:15-cv-00119 SAB HC.” The Court 27 recommends the instant petition be dismissed as duplicative. 28 /// 2 1 RECOMMENDATION 2 It is RECOMMENDED that the petition for writ of habeas corpus be DISMISSED 3 as duplicative. Further, the Court ORDERS the Clerk of Court to assign a District Court 4 Judge to the present matter. 5 These findings and recommendations are submitted to the United States District 6 Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 7 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 8 Eastern District of California. Within thirty (30) days after being served with a copy, 9 Petitioner may file written objections with the Court and serve a copy on all parties. Such 10 a document should be captioned "Objections to Magistrate Judge's Findings and 11 Recommendations." The Court will then review the Magistrate Judge's ruling pursuant to 12 28 U.S.C. § 636 (b)(1)(c). Petitioner is advised that failure to file objections within the 13 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ 14 F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing 15 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 18 19 IT IS SO ORDERED. Dated: January 26, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 3

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