(PC) Anderson v. Babcock

• Court: District Court, E.D. California
• Decided: May 12, 2025
• Docket: 2:23-cv-02779
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERRANCE ANDERSON, No. 2:23-cv-2779 TLN AC P 12 Plaintiff, 13 v. ORDER 14 C. BABCOCK, et al., 15 Defendants. 16 17 Pending before the undersigned are plaintiff’s post-judgment motions to appoint counsel 18 and proceed in forma pauperis. ECF Nos. 12, 13.1 19 I. Background 20 Plaintiff is a state prisoner proceeding without counsel. He commenced this action, which 21 will be referred to here as “Anderson I”, on November 30, 2023, by filing a civil rights complaint 22 seeking relief under 42 U.S.C. § 1983. On December 30, 2023, the court ordered plaintiff to 23 submit an in forma pauperis affidavit or pay the required fees within thirty days or risk a 24 recommendation for dismissal. ECF No. 3. On January 24, 2024, after plaintiff failed to respond, 25 the undersigned issued findings and recommendations recommending that the action be dismissed 26 without prejudice. ECF No. 6. On February 2, 2024, the court received plaintiff’s application to 27 1 The district judge referred these motions to the undersigned pursuant to Local Rule 302(a). See 28 ECF No. 14; E.D. Cal. L.R. 302(a). 1 proceed in forma pauperis. ECF No. 7. The findings and recommendations were subsequently 2 vacated. ECF No. 8. 3 Meanwhile, on March 29, 2024, plaintiff resubmitted his complaint and application to 4 proceed in forma pauperis. Because neither document included the case number for this case, the 5 Clerk of the Court opened a new case, No. 2:24-cv-0977 KJM DMC P (E.D. Cal.) (“Anderson 6 II”). Review of the complaints and in forma pauperis application form reveal that they are 7 identical in substance. The only identifiable difference between the complaint in the instant case 8 and that in Anderson II is that the complaint in Anderson II is signed and dated, and the only 9 identifiable differences between the applications to proceed in forma pauperis are the signature 10 dates, the inmate statement report dates, and that the certificate is partially filled out in the instant 11 case. Anderson I, ECF Nos. 1, 2; Anderson II, ECF Nos. 1, 2. 12 In the instant case, unaware of Anderson II, the undersigned ordered plaintiff on May 29, 13 2024 to file a signed complaint within thirty days. ECF No. 8. The court warned that failure to 14 comply would result in a recommendation that this action be dismissed. Id. at 2. Several months 15 later, on December 19, 2024, after plaintiff failed to respond, the undersigned issued findings and 16 recommendations recommending that the action be dismissed without prejudice and gave plaintiff 17 fourteen days to file objections. ECF No. 9. On January 27, 2025, after the time to file 18 objections had passed, the district judge adopted the December 19, 2024, findings and 19 recommendations, denied as moot the motion to proceed in forma pauperis, dismissed the action 20 without prejudice, and ordered the case closed. ECF No. 10. 21 In the meantime, the complaint in Anderson II has been screened and served and the case 22 has proceeded into discovery. Anderson II, ECF Nos. 10, 19. 23 Recently, plaintiff filed a motion to appoint counsel and motion to proceed in forma 24 pauperis in the instant case. ECF Nos. 12, 13. In the motion to appoint counsel, plaintiff argues 25 that appointment is necessary because (1) plaintiff cannot read or write, (2) plaintiff has the 26 comprehension of a third grader, (3) the inmate who was helping plaintiff with the case has been 27 released from custody, and (4) there is a likelihood that plaintiff will prevail on the merits since 28 //// 1 the court found that he had sufficiently stated claims against the defendants. ECF No. 12 at 1-5, 2 8, 9. 3 II. Discussion 4 As an initial matter, the court notes that the complaint in the instant case was never 5 screened because it was never filed with a signature. Accordingly, plaintiff’s reference to the 6 facial sufficiency of his claims suggests that he may have intended to file the instant motions in 7 Anderson II. 8 To the extent plaintiff is attempting to reopen Anderson I by seeking appointment of 9 counsel, the court declines to do so because plaintiff “has no right to maintain two separate 10 actions involving the same subject matter at the same time in the same court and against the same 11 defendant,” MHC Fin. Ltd. P’ship v. City of San Rafael, 714 F.3d 1118, 1133 (9th Cir. 2013). 12 Generally, in this district, when a duplicative case is filed, the later-filed action is dismissed as 13 duplicative, and the claims proceed in the earlier-filed action. However, because this case was 14 dismissed even before screening could be completed, and the court has already screened and 15 served the complaint in Anderson II and discovery has been underway for months, the court will 16 deny the motion to appoint in this case as moot and direct the Clerk of the Court to file the motion 17 to appoint counsel in Anderson II. See M.M. v. Lafayette Sch. Dist., 681 F.3d 1082, 1091 (9th 18 Cir. 2012) (citing Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688-89 (9th Cir. 2007)) 19 (“[A] district court has broad discretion to control its own docket, and that includes the power to 20 dismiss duplicative claims.”); Adams, 487 F.3d at 688, overruled on other grounds by Taylor v. 21 Sturgell, 553 U.S. 880, 904 (2008) (“After weighing the equities of the case, the district court 22 may exercise its discretion to dismiss a duplicative later-filed action, to stay that action pending 23 resolution of the previously filed action, to enjoin the parties from proceeding with it, or to 24 consolidate both actions.”). Because this case will remain closed, the motion to proceed in forma 25 pauperis will be vacated as moot. 26 Plaintiff is advised that this case, Anderson v. Babcock, Case No. 2:23-cv-2779 TLN AC 27 P was dismissed and closed on January 27, 2025, and the case will remain closed. Plaintiff’s First 28 Amendment retaliation claims against defendants C. Babcock, J. Fisk, and K. Estupinan will 1 || proceed in Anderson v. Babcock, Case No. 2:24-cv-0977 KIM DMC P. Future filings relating to 2 || plaintiff's claims against C. Babcock, J. Fisk, and K. Estupinan, unless they are intended as a new 3 || lawsuit based on new facts, should be properly labeled with the case name Anderson v. Babcock 4 | and the Case No. 24-cv-0977 KIM DMC P before plaintiff mails them to the court for filing. 5 CONCLUSION 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The motion to proceed in forma pauperis (ECF No. 13) is VACATED as moot. 8 2. The Clerk of the Court is directed to file the motion to appoint counsel (ECF No. 12) 9 | in Anderson v. Babcock, Case No. 2:24-cv-0977 □□□ DMC P. 10 3. This case remains closed. 11 | DATED: May 12, 2025 Atl 2 MV, 12 ALLISON CLAIRE B UNITED STATES MAGISTRATE JUDGE

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