(PS)Mitchell v. Brown et al, No. 2:2014cv02994 - Document 3 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/8/15 RECOMMENDING that the 2 Motion to Proceed IFP be denied and that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr. Objections due within 14 days. (Manzer, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODERICK L. MITCHELL, 12 13 14 15 No. 2:14-cv-2994 GEB DAD PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS JERRY BROWN, et al., Defendants. 16 17 Plaintiff Roderick Mitchell is proceeding in this action pro se. This matter was referred to 18 the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff 19 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 20 Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C. § 21 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma pauperis 22 status does not complete the inquiry required by the statute. “‘A district court may deny leave to 23 proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that 24 the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th 25 Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987)). See 26 also Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the District Court to 27 examine any application for leave to proceed in forma pauperis to determine whether the 28 proposed proceeding has merit and if it appears that the proceeding is without merit, the court is 1 1 bound to deny a motion seeking leave to proceed in forma pauperis.”). 2 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 3 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 4 state a claim on which relief may be granted, or seeks monetary relief against an immune 5 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 6 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 7 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 8 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 9 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 10 11 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 12 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 13 true the material allegations in the complaint and construes the allegations in the light most 14 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 15 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 16 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 17 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 18 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 19 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 20 The minimum requirements for a civil complaint in federal court are as follows: 21 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. 22 23 24 FED. R. CIV. P. 8(a). 25 ///// 26 ///// 27 ///// 28 ///// 2 Here, the court’s records reveal that the complaint filed in this action is identical to the 1 2 complaint plaintiff has filed in the matter of Roderick L. Mitchell v. Jerry Brown, et al., No. 2:14- 3 cv-2993 MCE AC, which is currently pending in this court and is at later stage in the proceedings 4 than this action.1 Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are 5 subject to dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. 6 United States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 7 573, 574 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir.1993); Bailey v. 8 Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely 9 repeats pending or previously litigated claims may be considered abusive and dismissed under § 10 1915. Cato, 70 F.3d at 1105 n. 2; Bailey, 846 F.2d at 1021. Repeating the same factual 11 allegations asserted in an earlier case, even if now filed against new defendants, is subject to 12 dismissal as duplicative. See, e.g., Bailey, 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 13 366, 368 (8th Cir. 1975). “Dismissal of the duplicative lawsuit, more so than the issuance of a 14 stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive 15 disposition of litigation.” Adams v. California, 487 F.3d 684, 688, 692 (9th Cir. 2007). “[I]n 16 assessing whether the second action is duplicative of the first, we examine whether the causes of 17 action and relief sought, as well as the parties or privies to the action, are the same.” (Id. at 689.) 18 Here, plaintiff’s complaint in this action raises the same allegations as those made against 19 the same defendant and is seeking the same relief as that sought in Roderick L. Mitchell v. Jerry 20 Brown, et al., No. 2:14-cv-2993 MCE AC. Indeed, the complaints in the two actions are 21 identical. The undersigned finds, therefore, that this action should be dismissed as duplicative of 22 plaintiff’s earlier filed action in this court. 23 ///// 24 ///// 25 ///// 26 1 27 28 This court may take judicial notice of its own records. See United States v. Howard, 381 F.3d 873, 876 n. 1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also FED. R. EVID. 201 (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned). 3 1 2 CONCLUSION Accordingly, IT IS HEREBY RECOMMENDED that: 1. Plaintiff’s December 29, 2014 application to proceed in forma pauperis (Dkt. 3 4 No. 2) be denied; 2. Plaintiff’s December 29, 2014 complaint (Dkt. No. 1) be dismissed without 5 6 7 8 9 prejudice; and 3. This action be dismissed. These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 10 days after being served with these findings and recommendations, plaintiff may file written 11 objections with the court. A document containing objections should be titled “Objections to 12 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 13 objections within the specified time may, under certain circumstances, waive the right to appeal 14 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: July 8, 2015 16 17 18 19 DAD:6 Ddad1\orders.pro se\mitchell2994.ifp.dup.f&rs.docx 20 21 22 23 24 25 26 27 28 4

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