(PC) Battiste v. Duel Vocational Institution, No. 2:2009cv02782 - Document 11 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 2/11/10 ORDERING that Clerk of the Court is directed to randomly assign a United States District Judge to this action; and plaintiffs 9 motion for appointment of counsel is DENIED without prejudice to refiling in Case No. CIV S-09-2053 GGH P; RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.(Dillon, M)

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(PC) 11 Doc. 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 EDWARD ANTONIO BATTISTE, 11 Plaintiff, 12 vs. 13 No. CIV S-09-2782 DAD P DVI et al., 14 ORDER AND Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a former state prisoner proceeding pro se. On October 6, 2009, 17 plaintiff commenced this action by filing a complaint pursuant to 42 U.S.C. § 1983. The court’s 18 own records reveal that, on July 27, 2009, plaintiff filed a complaint containing virtually identical 19 allegations against the same defendants.1 (Case No. CIV S-09-2053 GGH P).2 Due to the 20 ///// 21 22 23 24 25 1 The only defendant plaintiff has identified in the instant action that he did not identify in his complaint filed in Case No. CIV S-09-2053 GGH P is Deuel Vocational Institution (“DVI”). However, plaintiff cannot proceed against DVI in any event because, under the Eleventh Amendment, “agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court.” Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999). 2 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). 1 Dockets.Justia.com 1 duplicative nature of the present action, the court will recommend that plaintiff’s complaint be 2 dismissed. 3 IT IS HEREBY ORDERED that: 4 1. The Clerk of the Court is directed to randomly assign a United States District 5 Judge to this action; and 6 7 2. Plaintiff’s motion for appointment of counsel (Doc. No. 9) is denied without prejudice to refiling in Case No. CIV S-09-2053 GGH P. 8 9 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 12 one days after being served with these findings and recommendations, plaintiff may file written 13 objections with the court. A document containing objections should be titled “Objections to 14 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 15 objections within the specified time may waive the right to appeal the District Court’s order. See 16 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: February 11, 2010. 18 19 20 DAD:9 batt2782.23 21 22 23 24 25 26 2

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