(PC) Tombs v. Wallace, No. 2:2013cv01348 - Document 9 (E.D. Cal. 2013)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/06/13 vacating 5 FINDINGS AND RECOMMENDATIONS. Also, RECOMMENDING that this action be dismissed without prejudice. The clerk of the court is directed to file the complaint in the instant action 1 as an amended civil rights complaint in 2:13-cv-1340 MCE CMK. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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(PC) Tombs v. Wallace Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY E. TOMBS, 12 Plaintiff, 13 14 No. 2:13-cv-1348 AC P v. ORDER AND FINDINGS AND RECOMMENDATIONS JORDAN KEITH WALLACE, 15 Defendant. 16 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 17 18 under 42 U.S.C. § 1983. On September 9, 2013, the undersigned issued findings and a 19 recommendation that this action be dismissed without prejudice because plaintiff had not filed an 20 in forma pauperis affidavit or paid the appropriate filing fee. ECF No. 5. Since that time, 21 plaintiff has been released from prison, ECF No. 8, and has filed a motion to proceed in forma 22 pauperis, ECF Nos. 6, 7. The court will vacate its September 9, 2013 recommendation of 23 dismissal for the reasons discussed below. Plaintiff’s complaint was filed with the court on July 5, 2013. The court’s own records 24 25 reveal that on the same date, plaintiff filed an identical complaint containing the same allegations 26 against defendant Jordan Wallace. Tombs v. Wallace, No. 2:13-cv-1340 MCE CMK (E.D. Cal.).1 27 28 1 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 The complaint filed in Case No. 2:13-cv-1340 MCE CMK contains only eleven pages. The 2 complaint filed in the instant action contains fourteen pages plus a civil case cover sheet. Due to 3 the duplicative nature of the present action, the court will recommend that the instant complaint 4 be dismissed. 5 6 Accordingly, IT IS ORDERED that the September 9, 2013 Findings and Recommendations are VACATED. 7 IT IS RECOMMENDED that: 8 1. This action be dismissed without prejudice. See Fed. R. Civ. P. 41(b); and 9 2. The Clerk of Court is directed to file the complaint in the instant action, ECF No. 1, as 10 11 an amended civil rights complaint in Case No. 2:13-cv-1340 MCE CMK. These findings and recommendations are submitted to the District Judge assigned to this 12 case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served 13 with these findings and recommendations, plaintiff may file written objections with the court. 14 The document should be captioned “Objections to Magistrate Judge’s Findings and 15 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 16 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 17 Cir. 1991). 18 DATED: November 6, 2013 19 20 21 22 23 24 25 26 27 28 2

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