(PC) Montoya v. Murphy, No. 1:2018cv01030 - Document 6 (E.D. Cal. 2018)

Court Description: ORDER DIRECTING Clerk of Court to Randomly Assign a District Judge to This Action; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action as Duplicative, signed by Magistrate Judge Stanley A. Boone on 8/2/18. Objections to F&R Due Within Twenty One Days. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FREDDIE MONTOYA, 12 Plaintiff, 13 14 v. LORRAINE MURPHY, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-01030-SAB (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION AS DUPLICATIVE [ECF No. 1] 17 Plaintiff Freddie Montoya is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action in the United States District Court for 19 the Eastern District of California, Sacramento Division on July 26, 2018. On July 31, 2018, the action 20 transferred to this Court. Plaintiff’s complaint is currently before the Court for screening. (ECF No. 21 1.) 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by individuals who are proceeding in forma 25 pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam); 28 U.S.C. § 1915(e)(2). The 26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 “frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks 28 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 1 1 Since the statute does not define “frivolous or malicious,” the federal courts have uniformly 2 agreed that, at a minimum, a malicious lawsuit is one that is duplicative of another pending federal 3 lawsuit involving the same plaintiff. See, e.g., Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988); 4 McWilliams v. Colorado, 121 F.3d 573 (10th Cir. 1997) (affirming dismissal of § 1983 complaint as 5 frivolous where it duplicated a prior federal lawsuit); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 6 1993) (affirming dismissal of duplicative complaint under pre-PLRA version of 28 U.S.C. § 1915(e)); 7 Murillo v. Taylor, Case No. 14cv876-WQH (WVG), 2015 WL 4488060, at *15-16 (S.D. Cal. July 22, 8 2015); Meadows v. Woods, 156 F.R.D. 165, 166 (W.D. Tenn. 1994) (dismissing complaint as frivolous 9 under pre-PLRA version of 28 U.S.C. § 1915(e)). An in forma pauperis complaint that merely repeats 10 pending or previously litigated claims may be considered abusive and dismissed under section 1915. 11 Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (citing Bailey, 846 F.2d at 1021). 12 “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of 13 proceedings, promotes judicial economy and the “comprehensive disposition of litigation.” Adams v. 14 California, 487 F.3d 684, 692-94 (9th Cir. 2007) (citation omitted), overruled on other grounds by 15 Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 16 II. 17 COMPLAINT ALLEGATIONS 18 Plaintiff names parole agent Lorraine Murphy and Warden of the California Correctional 19 Institution (CCI), Tehachapi as Defendants. Plaintiff contends Lorraine Murphy entered the wrong penal code number in her state owned 20 21 computer that caused Plaintiff to be stabbed at CCI. As a result of the stabbing, Plaintiff is 22 permanently handicapped. Plaintiff seeks compensatory and punitive damages. 23 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. Dismissal as Duplicative 4 In order to determine whether cases are duplicative, the Court examines “whether the causes of 5 action and relief sought, as well as the parties or privies to the action, are the same.” Adams v. 6 California, 487 F.3d at 689. The Court takes judicial notice of the fact that Plaintiff has another pending action in this Court 7 8 in case number 1:18-cv-00060-BAM (PC), Montoya v. Murphy, et.al. (E.D. Cal. filed Jan. 5, 2018) 9 (Montoya I). For the reasons explained below, the Court finds that the present action is duplicative of 10 case number 1:18-cv-00060-BAM (PC) and must be dismissed. In Montoya I, Plaintiff names both parole agent Lorraine Murphy and Warden of CCI as 11 12 Defendants.1 On July 10, 2018, the Court screened Montoya I, found Plaintiff failed to state a 13 cognizable claim for relief, and granted leave to amend. Plaintiff’s amended complaint is currently 14 due on or before August 9, 2018. One of Plaintiff’s claims in Montoya I was that “Parole Agent 15 Murphy failed to proofread the information she entered into her state-owned computer” because “[s]he 16 reportedly entered a penal code section that did not apply to Plaintiff and which caused him to be 17 stabbed multiple times, leaving him permanently handicapped. (Screening Order, ECF No. 16 at 2:22- 18 25.) Plaintiff attached some of the same exhibits as those attached to the present complaint. It is clear 19 that the two actions arise out of the same nucleus of facts. Both actions involve the claim that he was 20 subjected to cruel and unusual punishment because Lorraine Murphy entered the wrong penal code 21 which resulted in injury to Plaintiff. In addition, Plaintiff seeks monetary damages in both actions. 22 Therefore, because the two actions share the same cause of action and parties, Plaintiff’s instant action 23 is duplicative of Montoya I and must be dismissed with prejudice. Adams, 487 F.3d at 692 (finding 24 no abuse of discretion for dismissing the later-filed complaint with prejudice). 25 /// 26 /// 27 28 1 Plaintiff also names correctional officers Scott and Decord. 3 1 IV. 2 RECOMMENDATION 3 Based on the foregoing, it is HEREBY RECOMMENDED that: 4 1. The instant action be dismissed with prejudice; and 5 2. The Clerk of Court is directed to randomly assign a District Judge to this action. 6 This Findings and Recommendation will be submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 8 days after being served with this Findings and Recommendation, Plaintiff may file written objections 9 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 11 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 12 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IT IS SO ORDERED. 16 Dated: 17 August 2, 2018 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 4