(PC) Anderson v. Babcock

Opinion

TERRANCE ANDERSON, No. 2:23-cv-2779 TLN AC P Plaintiff, v. ORDER C. BABCOCK, et al., Defendants. Pending before the undersigned are plaintiff’s post-judgment motions to appoint counsel and proceed in forma pauperis. ECF Nos. 12, 13.1 I. Background Plaintiff is a state prisoner proceeding without counsel. He commenced this action, which will be referred to here as “Anderson I”, on November 30, 2023, by filing a civil rights complaint seeking relief under 42 U.S.C. § 1983. On December 30, 2023, the court ordered plaintiff to submit an in forma pauperis affidavit or pay the required fees within thirty days or risk a recommendation for dismissal. ECF No. 3. On January 24, 2024, after plaintiff failed to respond, the undersigned issued findings and recommendations recommending that the action be dismissed without prejudice. ECF No. 6. On February 2, 2024, the court received plaintiff’s application to 1 The district judge referred these motions to the undersigned pursuant to Local Rule 302(a). See ECF No. 14; E.D. Cal. L.R. 302(a). proceed in forma pauperis. ECF No. 7. The findings and recommendations were subsequently vacated. ECF No. 8. Meanwhile, on March 29, 2024, plaintiff resubmitted his complaint and application to proceed in forma pauperis. Because neither document included the case number for this case, the Clerk of the Court opened a new case, No. 2:24-cv-0977 KJM DMC P (E.D. Cal.) (“Anderson II”). Review of the complaints and in forma pauperis application form reveal that they are identical in substance. The only identifiable difference between the complaint in the instant case and that in Anderson II is that the complaint in Anderson II is signed and dated, and the only identifiable differences between the applications to proceed in forma pauperis are the signature dates, the inmate statement report dates, and that the certificate is partially filled out in the instant case. Anderson I, ECF Nos. 1, 2; Anderson II, ECF Nos. 1, 2. In the instant case, unaware of Anderson II, the undersigned ordered plaintiff on May 29, 2024 to file a signed complaint within thirty days. ECF No. 8. The court warned that failure to comply would result in a recommendation that this action be dismissed. Id. at 2. Several months later, on December 19, 2024, after plaintiff failed to respond, the undersigned issued findings and recommendations recommending that the action be dismissed without prejudice and gave plaintiff fourteen days to file objections. ECF No. 9. On January 27, 2025, after the time to file objections had passed, the district judge adopted the December 19, 2024, findings and recommendations, denied as moot the motion to proceed in forma pauperis, dismissed the action without prejudice, and ordered the case closed. ECF No. 10. In the meantime, the complaint in Anderson II has been screened and served and the case has proceeded into discovery. Anderson II, ECF Nos. 10, 19. Recently, plaintiff filed a motion to appoint counsel and motion to proceed in forma pauperis in the instant case. ECF Nos. 12, 13. In the motion to appoint counsel, plaintiff argues that appointment is necessary because (1) plaintiff cannot read or write, (2) plaintiff has the comprehension of a third grader, (3) the inmate who was helping plaintiff with the case has been released from custody, and (4) there is a likelihood that plaintiff will prevail on the merits since //// the court found that he had sufficiently stated claims against the defendants. ECF No. 12 at 1-5, 8, 9. II. Discussion As an initial matter, the court notes that the complaint in the instant case was never screened because it was never filed with a signature. Accordingly, plaintiff’s reference to the facial sufficiency of his claims suggests that he may have intended to file the instant motions in Anderson II. To the extent plaintiff is attempting to reopen Anderson I by seeking appointment of counsel, the court declines to do so because plaintiff “has no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant,” MHC Fin. Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1133 (9th Cir. 2013). Generally, in this district, when a duplicative case is filed, the later-filed action is dismissed as duplicative, and the claims proceed in the earlier-filed action. However, because this case was dismissed even before screening could be completed, and the court has already screened and served the complaint in Anderson II and discovery has been underway for months, the court will deny the motion to appoint in this case as moot and direct the Clerk of the Court to file the motion to appoint counsel in Anderson II. See M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1091 (9th Cir. 2012) (citing Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688-89 (9th Cir. 2007)) (“[A] district court has broad discretion to control its own docket, and that includes the power to dismiss duplicative claims.”); Adams, 487 F.3d at 688, overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008) (“After weighing the equities of the case, the district court may exercise its discretion to dismiss a duplicative later-filed action, to stay that action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions.”). Because this case will remain closed, the motion to proceed in forma pauperis will be vacated as moot. Plaintiff is advised that this case, Anderson v. Babcock, Case No. 2:23-cv-2779 TLN AC P was dismissed and closed on January 27, 2025, and the case will remain closed. Plaintiff’s First Amendment retaliation claims against defendants C. Babcock, J. Fisk, and K. Estupinan will proceed in Anderson v. Babcock, Case No. 2:24-cv-0977 KIM DMC P. Future filings relating to plaintiff's claims against C. Babcock, J. Fisk, and K. Estupinan, unless they are intended as a new lawsuit based on new facts, should be properly labeled with the case name Anderson v. Babcock and the Case No. 24-cv-0977 KIM DMC P before plaintiff mails them to the court for filing. Accordingly, IT IS HEREBY ORDERED that: 1. The motion to proceed in forma pauperis (ECF No. 13) is VACATED as moot. 2. The Clerk of the Court is directed to file the motion to appoint counsel (ECF No. 12) in Anderson v. Babcock, Case No. 2:24-cv-0977 □□□ DMC P. 3. This case remains closed. DATED: May 12, 2025 Atl 2 MV, B UNITED STATES MAGISTRATE JUDGE