(PS) Contreras v. McHugh, et al., No. 2:2015cv01549 - Document 3 (E.D. Cal. 2015)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/24/15 recommending that this action be dismissed as duplicative and motion to proceed IFP be denied as moot. Ordering that this action is stayed. F&R referred to Judge Morrison C. England, Jr.. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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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 GRACIELA CONTRERAS, 12 Plaintiff, 13 14 No. 2:15-cv-1549-MCE-KJN PS v. ORDER AND JOHN M. MCHUGH, et al., FINDINGS AND RECOMMENDATIONS 15 16 Defendants. 17 Plaintiff Graciela Contreras, who proceeds in this action without counsel, has requested 18 19 leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 2.)1 Pursuant to 28 20 U.S.C. § 1915, the court is directed to dismiss the case at any time if it determines that the 21 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 22 which relief may be granted, or seeks monetary relief against an immune defendant. In this case, plaintiff, a former Equal Employment Specialist with the California Military 23 24 Department’s Equal Employment Office, alleges discrimination and retaliation based on race, 25 color, national origin, sex, and disability by several federal and state officials. (ECF No. 1.) 26 However, a careful review of the complaint in this case reveals that the action is duplicative of an 27 28 1 This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C. § 636(b)(1). 1 1 earlier action brought by plaintiff which remains pending in this court. (Compare ECF No. 1 to 2 Contreras v. National Guard Bureau, 2:14-cv-1282-MCE-EFB, ECF No. 9.) The actions appear 3 to involve the same events, the same parties, and the same types of claims, except that the 4 operative first amended complaint in the prior action contains significantly more facts and details 5 underlying plaintiff’s claims. 6 Therefore, the court recommends that this action be dismissed as duplicative. In 7 recommending dismissal of this action, the court expresses no opinion regarding the merits of 8 plaintiff’s claims, which plaintiff may pursue in the earlier action. 9 Accordingly, IT IS HEREBY RECOMMENDED that: 10 1. This action be dismissed as duplicative. 11 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be denied as moot. 12 3. The Clerk of Court be directed to close this case. 13 In light of these recommendations, IT IS ALSO HEREBY ORDERED that this action is 14 stayed pending resolution of these findings and recommendations. Other than objections to the 15 findings and recommendations, the court will not entertain or respond to any pleadings or motions 16 until the findings and recommendations are resolved. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 19 days after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 22 shall be served on all parties and filed with the court within fourteen (14) days after service of the 23 objections. The parties are advised that failure to file objections within the specified time may 24 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 25 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 26 27 IT IS SO ORDERED AND RECOMMENDED. Dated: August 24, 2015 28 2

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