Lim v. Child Protective Services of Tulare County et al, No. 1:2021cv00433 - Document 5 (E.D. Cal. 2021)

Court Description: Findings and Recommendations to dismiss this 1 action as duplicative of case No. 1:20-cv-01049-NONE-SKO, signed by Magistrate Judge Erica P. Grosjean on 5/5/2021. Matter referred to Judge Drozd. Objections to F&R due by 5/28/2021. (Rosales, O.)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 Plaintiff, 9 FINDINGS AND RECOMMENDATION TO DISMISS THIS ACTION AS DUPLICATIVE OF CASE NO. 1:20-cv-01049-NONE-SKO v. 10 11 Case No. 1:21-cv-00433-NONE-EPG CHONG SOOK LIM, CHILD PROTECTIVE SERVICES OF TULARE COUNTY, et al., TWENTY (20) DAY DEADLINE 12 Defendants. 13 Chong Sook Lim (“Plaintiff”) is proceeding pro se and in forma pauperis in this civil 14 15 rights action pursuant to 42 U.S.C. § 1983. On March 16, 2021, Plaintiff filed the complaint 16 commencing this action. (ECF No. 1). For the reasons that follow, the undersigned will 17 recommend that this action be dismissed as duplicative of Lim v. Menne, No. 1:20-cv-0104918 NONE-SKO. 19 20 I. LEGAL STANDARD “Plaintiffs generally have ‘no right to maintain two separate actions involving the same 21 subject matter at the same time in the same court and against the same defendant.’” Adams v. 22 Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 23 563 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 24 904 (2008). 25 “To determine whether a suit is duplicative, we borrow from the test for claim 26 preclusion.” Adams, 487 F.3d at 688. “‘[T]he true test of the sufficiency of a plea of ‘other suit 27 pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as ‘the 28 thing adjudged,’ regarding the matters at issue in the second suit.’” Adams, 487 F.3d at 688 1 1 (second alteration in original) (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). “Thus, 2 in assessing whether the second action is duplicative of the first, we examine whether the causes 3 of action and relief sought, as well as the parties . . . to the action, are the same.” Adams, 487 4 F.3d at 689. See also Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993) (“[A] suit 5 is duplicative if the claims, parties, and available relief do not significantly differ between the 6 two actions.” (internal quotation marks omitted)). “After weighing the equities of the case, the district court may exercise its discretion to 7 8 dismiss a duplicative later-filed action, to stay that action pending resolution of the previously 9 filed action, to enjoin the parties from proceeding with it, or to consolidate both actions.” 10 Adams, 487 F.3d at 688. II. 11 DISCUSSION Plaintiff has two civil rights cases pending before this Court. On July 30, 2020, Plaintiff 12 13 filed a complaint in the Eastern District of California, which is proceeding in Lim v. Menne, No. 14 1:20-cv-01049-NONE-SKO. The second case is the present case, No. 1:21-cv-00433-NONE15 EPG, filed on March 16, 2021. (ECF No. 1). In both this case and in Case No. 1:20-cv-01049-NONE-SKO, Plaintiff alleges that 16 17 Tulare County Child Protective Services (“CPS”) employees deprived Plaintiff of a Korean 18 interpreter at their interviews conducted in 2014–2018, which resulted in the filing of false and 19 inaccurate reports, which were later submitted to the family court judge and contributed to the 20 loss of full custody of Plaintiff’s child. In both cases, Plaintiff asserts violations of her right to 21 familial association. In both cases, Plaintiff also asserts Monell claims regarding a policy of 22 inadequate training and/or supervision related to the investigation of child abuse and a practice of 23 presenting false and fabricate evidence to the family court. In both cases, CPS and Lydia Suarez 24 are named as defendants.1 Having reviewed Plaintiff’s two cases, the Court finds that the allegations, claims, and 25 26 requested relief are nearly identical. In Case No. 1:20-cv-01049-NONE-SKO, Defendants Lydia 27 1 In Case No. 1:20-cv-01049-NONE-SKO, Jennifer Menne and Melanie Huerta are also named as additional 28 defendants. (See No. 1:20-cv-01049-NONE-SKO, ECF No. 7). 2 1 Suarez and CPS were dismissed on January 4, 2021, while the case proceeded only on Plaintiff’s 2 § 1983 familial association claim against Defendants Jennifer Menne and Melanie Huerta. (See 3 No. 1:20-cv-01049-NONE-SKO, ECF Nos. 8–9). The complaint filed in the instant action 4 appears to be an improper attempt to reinstate Plaintiff’s claims against Lydia Suarez and CPS. Based on the foregoing, the Court finds the instant case to be duplicative of Case No. 5 6 1:20-cv-01049-NONE-SKO. Therefore, this case should be dismissed. 7 III. RECOMMENDATION 8 Accordingly, the undersigned HEREBY RECOMMENDS that: 9 1. This action be dismissed as duplicative of Lim v. Menne, No. 1:20-cv-01049NONE-SKO; and 10 11 2. The Clerk of Court be directed to close the case. 12 This Findings and Recommendation is submitted to the assigned United States District 13 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 14 Rules of Practice for the United States District Court, Eastern District of California. Within 15 TWENTY (20) days after service of the Findings and Recommendation, Plaintiff may file 16 written objections with the Court. Such a document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendation.” The assigned United States District Court 18 Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 19 Plaintiff is advised that failure to file objections within the specified time may waive the right to 20 appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 21 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 IT IS SO ORDERED. Dated: May 5, 2021 /s/ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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