(HC) Ramirez v. Curry, No. 2:2008cv02487 - Document 7 (E.D. Cal. 2009)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/6/09 ORDERING that petitioner's 2 request to proceed IFP is GRANTED; and RECOMMENDING that this action be dismissed w/out prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due w/in 20 days. (Yin, K)
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(HC) Ramirez v. Curry Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSE RAMIREZ, Petitioner, 11 12 13 14 vs. BEN CURRY, Warden, ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. / 15 16 No. CIV S-08-2487 GEB EFB P Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. He seeks leave to proceed in forma pauperis. See 28 18 U.S.C. § 1915(a). 19 Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 20 the costs of suit. However, it appears that petitioner has filed duplicative petitions, and that this 21 action should therefore be dismissed. A suit is duplicative if the “claims, parties, and available 22 relief do not significantly differ between the two actions.” Barapind v. Reno, 72 F. Supp.2d 23 1132, 1145 (E.D. Cal. 1999) (quoting Ridge Gold Standard Liquors, Inc. v. Joseph E. Seagram 24 & Sons, Inc., 572 F. Supp. 1210, 1213 (N.D. Ill. 1983)). “When a complaint involving the same 25 parties and issues has already been filed in another federal district court, the court has discretion 26 to abate or dismiss the second action. Id. at 1144 (citation omitted). “Federal comity and 1 Dockets.Justia.com 1 judicial economy give rise to rules which allow a district court to transfer, stay, or dismiss an 2 action when a similar complaint has already been filed in another federal court.” Id. at 1145 3 (citation omitted). “[I]ncreasing calendar congestion in the federal courts makes it imperative to 4 avoid concurrent litigation in more than one forum whenever consistent with the right of the 5 parties.” Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979). 6 On June 13, 2006, petitioner filed an application for a writ of habeas corpus challenging a 7 2003 conviction in the Sacramento County Superior Court for carjacking, robbery, assault with a 8 weapon, and evading a peace officer. Ramirez v. Runnels, No. Civ. 06-1312-GHW, Docket No. 9 1.1 That conviction resulted in a sentence of 36 years in state prison. Id. Respondent filed an 10 answer on August 24, 2006, and the matter is submitted for decision. Id. at Docket No. 8. On 11 October 20, 2008, petitioner commenced this action by filing a second application, which also 12 challenges a 2003 conviction in the Sacramento County Superior Court for carjacking, robbery, 13 assault with a weapon and evading a peace officer. In each petition, petitioner contends he was 14 denied effective assistance of counsel. Due to the duplicative nature of the present action, this 15 action should be dismissed and petitioner should proceed on the action he initially commenced. 16 Accordingly, it is hereby ORDERED that petitioner’s request to proceed in forma 17 pauperis is granted. 18 It is further RECOMMENDED that this action be dismissed without prejudice. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 //// 24 //// 25 1 26 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 2 within the specified time may waive the right to appeal the District Court’s order. Turner v. 3 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 Dated: October 6, 2009. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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