(PC) Ellis v. Keener et al, No. 2:2013cv01299 - Document 13 (E.D. Cal. 2013)

Court Description: ORDER signed by Magistrate Judge Allison Claire on 9/6/13 ORDERING that the findings and recommendations 9 , filed on August 21, 2013, are hereby VACATED; The Clerk of the Court is directed to file plaintiffs requests at ECF No. 11 and ECF No. 12 in the docket of Case No. 2:11-cv-2954 TLN DAD P; and the Clerk shall close this case. CASE CLOSED. (Dillon, M)

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(PC) Ellis v. Keener et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT ELLIS, 12 No. 2:13-cv-1299 JAM AC P Plaintiff, 13 v. 14 KEENER, et al., 15 ORDER Defendants. 16 17 Plaintiff, a state prisoner, has filed an action pursuant to 42 U.S.C. § 1983. By findings 18 and recommendations filed on August 21, 2013 (ECF No. 9), the undersigned recommended 19 dismissal without prejudice of this action for plaintiff’s failure to respond to the court’s order 20 (ECF No. 7) directing plaintiff either to file an in forma pauperis affidavit or pay the appropriate 21 filing fee. See 28 U.S.C. §§ 1914(a), 1915(a). On August 22, 2013, the court received plaintiff’s 22 completed in forma pauperis affidavit (ECF No. 10). Accordingly, the court will vacate the 23 pending findings and recommendations. Nevertheless, the court will not grant plaintiff in forma 24 pauperis status or assess a filing fee because plaintiff chooses not to proceed in this action and 25 instead seeks to dismiss this action voluntarily. Plaintiff’s filings at ECF Nos. 11 and 12 indicate 26 his intent is instead to appeal the ruling in Case No. 2:11-cv-2954 TLN DAD P. In any event, as 27 plaintiff concedes that the issues in the instant case have already been decided in the prior case, 28 the doctrine of res judicata would appear to foreclose plaintiff’s ability to maintain this 1 Dockets.Justia.com 1 duplicative action.1 2 3 In light of plaintiff’s request to have the instant action dismissed (and no defendants having appeared), the action is dismissed pursuant to Fed. R. Civ. P. 41(a). 4 Accordingly, IT IS HEREBY ORDERED: 5 1. The findings and recommendations (ECF No. 9), filed on August 21, 2013, are hereby 6 vacated; 7 8 2. The Clerk of the Court is directed to file plaintiff’s requests at ECF No. 11 and ECF No. 12 in the docket of Case No. 2:11-cv-2954 TLN DAD P; and 9 10 3. The Clerk shall close this case. DATED: September 6, 2013 11 12 13 14 15 16 17 AC:009 elli1299.59+ 18 19 20 21 22 23 24 25 1 26 27 28 Under the doctrine of res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir. 1995) (quoting Allen v. Curry, 449 U.S. 90, 94 (1980). Res judicata principles apply to §1983 actions. See, Clark v. Yosemite Community College Dist., 785 F.2d 781, 788 n.9 (9th Cir. 1986). 2

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