-EFB (HC) Heilman v. Cherniss, No. 2:2011cv00043 - Document 8 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/22/11 ORDERING that 7 Motion to Proceed IFP is GRANTED; RECOMMENDING that this action be dismissed; 1 Petition for Writ of Habeas Corpus referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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-EFB (HC) Heilman v. Cherniss Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 THOMAS JOHN HEILMAN, Petitioner, 11 12 13 No. CIV S-11-0043 MCE EFB P vs. C. CHERNISS, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Respondents. 14 / 15 16 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 17 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 18 U.S.C. § 636(b)(1). Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. 19 § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is unable to 20 afford the costs of suit. 21 In his petition, petitioner states that he has also filed a civil rights complaint pursuant to 22 42 U.S.C. § 1983. The court has compared that civil rights complaint with the pending habeas 23 petition, and finds that they contain virtually identical allegations against the same parties.1 See 24 Heilman v. Cherniss, No. 2:11-cv-0042 JAM EFB. Although one action is a civil rights action 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). 1 Dockets.Justia.com 1 and the other is a habeas action, petitioner raises the same claims, which relate solely to his 2 conditions of confinement, in both actions. 3 A federal court may only grant a petition for writ of habeas corpus if the petitioner can 4 show that “he is in custody in violation of the Constitution . . . .” 28 U.S.C. § 2254(a). A habeas 5 corpus petition is the correct method for a prisoner to challenge the “legality or duration” of his 6 confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 7 411 U.S. 475, 484 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing § 2254 8 Cases. Because petitioner’s claim does not challenge his custody, it is not appropriate for a 9 § 2254 action. 10 Moreover, this action is duplicative of the pending civil rights action. A suit is 11 duplicative if the “claims, parties, and available relief do not significantly differ between the two 12 actions.” Barapind v. Reno, 72 F. Supp.2d 1132, 1145 (E.D. Cal. 1999) (quoting Ridge Gold 13 Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572 F. Supp. 1210, 1213 (N.D. Ill. 14 1983)). “When a complaint involving the same parties and issues has already been filed in 15 another federal district court, the court has discretion to abate or dismiss the second action. Id. at 16 1144 (citation omitted). “Federal comity and judicial economy give rise to rules which allow a 17 district court to transfer, stay, or dismiss an action when a similar complaint has already been 18 filed in another federal court.” Id. at 1145 (citation omitted). “[I]ncreasing calendar congestion 19 in the federal courts makes it imperative to avoid concurrent litigation in more than one forum 20 whenever consistent with the right of the parties.” Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 21 1979). 22 In light of the above, the court finds that this action should be dismissed and petitioner 23 should proceed on his earlier filed civil rights action. See Rule 4, Rules Governing § 2254 24 Cases. 25 26 Accordingly, IT IS HEREBY ORDERED that petitioner’s request to proceed in forma pauperis is granted. 2 1 Further, IT IS HEREBY RECOMMENDED that this action be dismissed. 2 These findings and recommendations are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after 4 being served with these findings and recommendations, any party may file written objections 5 with the court and serve a copy on all parties. Such a document should be captioned “Objections 6 to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 7 specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 8 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 Dated: February 22, 2011. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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