(PC) Adams v. Morton et al, No. 2:2017cv02715 - Document 6 (E.D. Cal. 2018)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/16/2018 ORDERING plaintiff's 5 request to proceed IFP is GRANTED; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR or der; and the Clerk shall randomly assign a US District Judge to this action. IT IS RECOMMENDED that this action be dismissed as duplicative and the Clerk be directed to close the case. Assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K) Modified on 5/16/2018 (Yin, K).

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(PC) Adams v. Morton et al Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RINESON C. ADAMS, 12 Plaintiff, 13 14 No. 2:17-cv-2715-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS N. MORTON, et al., 15 Defendant. 16 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 17 18 19 § 1983, seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 20 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 25 II. Screening Order Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 Dockets.Justia.com 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 The instant complaint, filed December 29, 2017, alleges that defendants Morton and 4 Fajardo used excessive force against plaintiff on February 8, 2017. ECF No. 1 at 3. Examination 5 of the court’s records reveals that plaintiff has already commenced an action with a complaint 6 concerning this alleged use of excessive force. See Adams v. CHCF, No. 2:17-cv-1817-MCE- 7 EFB (E.D. Cal.), ECF No. 1 (Aug. 31, 2017 Complaint). Therefore, this action must be 8 dismissed as duplicative of the earlier action. See Barapind v. Reno, 72 F. Supp. 2d 1132, 1144 9 (E.D. Cal. 1999) (when a complaint involving the same parties and issues has already been filed 10 in another federal district court, the court has discretion to abate or dismiss the second action). 11 “Federal comity and judicial economy give rise to rules which allow a district court to transfer, 12 stay, or dismiss an action when a similar complaint has already been filed in another federal 13 court.” Id. at 1145 (citation omitted). “[I]ncreasing calendar congestion in the federal courts 14 makes it imperative to avoid concurrent litigation in more than one forum whenever consistent 15 with the right of the parties.” Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979). 16 Due to the duplicative nature of the present action, this action should be dismissed and 17 plaintiff should proceed on the action he initially commenced See Cato v. United States, 70 F.3d 18 1103, 1105 n.2 (9th Cir. 1995) (A complaint that “merely repeats pending or previously litigated 19 claims” may be dismissed as frivolous under the authority of 28 U.S.C. § 1915). 20 III. 21 Conclusion Accordingly, IT IS ORDERED that: 22 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted. 23 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 24 in accordance with the notice to the California Department of Corrections and 25 Rehabilitation, filed concurrently herewith. 26 3. The Clerk of the Court shall randomly assign a United States District Judge to this 27 28 action. ///// 2 1 2 Further, it is hereby RECOMMENDED that this action be dismissed as duplicative and the Clerk be directed to close the case. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 within the specified time may waive the right to appeal the District Court’s order. Turner v. 9 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 Dated: May 16, 2018. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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