(PC) Everett v. C.D.C.R., No. 2:2018cv01894 - Document 23 (E.D. Cal. 2019)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/25/2019 ORDERING Clerk of Court to randomly assign a district judge and RECOMMENDING 21 First Amended Complaint be dismissed as duplicative and the Clerk of Court be directed to close this case. Assigned and referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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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 RICHARD C. EVERETT, 12 No. 2:18-cv-01894 CKD P Plaintiff, 13 v. 14 C.D.C.R., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendant. 16 17 Plaintiff is a California prisoner proceeding pro se and in forma pauperis in this civil 18 rights action filed pursuant to 42 U.S.C. § 1983. Currently before the court is plaintiff’s first 19 amended complaint. ECF No. 23. 20 I. Screening Standard 21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 24 “frivolous, malicious, or fail[ ] to state a claim upon which relief may be granted,” or that “seek[ ] 25 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 26 II. 27 In the amended complaint, plaintiff names Dr. Patterson, a psychologist at New Folsom 28 First Amended Complaint State Prison, as the sole defendant. ECF No. 21 at 2. He alleges that on “4/3/2018 at 10:45 a.m.” 1 1 and “4/10/2018 at 11:00 a.m.” defendant Dr. Patterson verbally abused plaintiff by trying to 2 convince him that “it is o.k. to be with a homosexual.” ECF No. 21 at 3. Plaintiff further alleges 3 that defendant Dr. Patterson was trying to hook him up with a Psychiatric Technician at the prison 4 by the name of Bonnie who is a transgender man. Id. at 5. According to the allegations in the 5 amended complaint, defendant Dr. Patterson had “Mr. Bonnie” talk to plaintiff “in a very sexy 6 way….” Id. This made plaintiff feel depressed and suicidal and on May 1, 2018 plaintiff put his 7 own human waste all over his face. Id. at 5-6. As a remedy, plaintiff “would like Dr. Patterson to 8 be removed from his position and from the mental health program” at CSP-Sacramento. Id. at 4. 9 10 III. Analysis The allegations in the first amended complaint are against the exact same defendant and 11 allege the exact same conduct as plaintiff’s complaint in Everett v. Patterson, 2:18-cv-01082 12 CKD P (E.D. Cal. 2018), which was filed before the present civil rights action. However, 13 plaintiff does not have the right to file two separate actions “involving the same subject matter at 14 the same time in the same court and against the same defendant.” Adams v. Cal. Dep’t of Health 15 Services, 487 F.3d 684, 688 (9th Cir. 2007) (citations omitted), overruled on other grounds by 16 Taylor v. Sturgell, 553 U.S. 880, 904 (2008). In order to determine whether a second action is 17 duplicative of an earlier-filed action, the court must “examine whether the causes of action and 18 relief sought, as well as the parties or privies to the action, are the same.” Id. at 688-89 (citations 19 omitted). In this case, the causes of action and relief sought are nearly verbatim to those in 20 plaintiff’s earlier-filed civil rights lawsuit. In both cases, the only named defendant is Dr. 21 Patterson. For all these reasons, the undersigned concludes that this case is duplicative of the 22 earlier-filed civil rights action and should be dismissed. 23 IV. Plain Language Summary for Pro Se Litigant 24 Since plaintiff is acting as his own attorney in this case, the court wants to make sure that 25 this order is understood. The following information is meant to explain this order in plain English 26 and is not intended as legal advice. 27 28 The court has read the allegations in your first amended complaint and is recommending that it be dismissed because your allegations are the same as another pending civil rights case that 2 1 you filed. If this recommendation is accepted by the district court judge assigned to your case, 2 this case will not proceed any further and this civil action will be closed. 3 4 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this matter to a district court judge. 5 IT IS FURTHER RECOMMENDED that: 6 1. Plaintiff’s first amended complaint (ECF No. 21) be dismissed as duplicative; and, 7 2. The Clerk of Court be directed to close this case. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 objections shall be served and filed within fourteen days after service of the objections. The 14 parties are advised that failure to file objections within the specified time may waive the right to 15 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: March 25, 2019 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 12/ever1894.screening.docx 25 26 27 28 3
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