(PC) Dailey v. Solano County Sheriff

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHARON N. DAILEY, No. 2:23-cv-00788-TLN-CKD 12 Plaintiff, 13 v. ORDER AND 14 SOLANO COUNTY SHERIFF, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a former county inmate proceeding without counsel in this civil rights action 18 filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 19 pursuant to 28 U.S.C. § 636(b)(1). 20 I. Procedural History 21 On February 28, 2024, this court issued Findings and Recommendations to dismiss this 22 action without prejudice based on plaintiff’s failure to file an amended complaint within the time 23 provided. ECF No. 12. After being granted an extension of time to file objections, ECF No. 14, 24 plaintiff filed a first amended complaint. ECF No. 15. 25 Before the court could screen the amended complaint, plaintiff filed a second amended 26 complaint on August 26, 2024. ECF No. 17. Because the second amended complaint replaces 27 the amended complaint as a matter of law, it is now the operative pleading before the court that is 28 subject to screening pursuant to 28 U.S.C. § 1915A(a). See Loux v. Rhay, 375 F.2d 55, 57 (9th 1 Cir. 1967) (citations omitted) (explaining that once an amended complaint is filed the original one 2 is “treated thereafter as non-existent.”). 3 II. Screening Requirement 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 9 III. Second Amended Complaint 10 Plaintiff alleges that while a pretrial detainee at the Solano County Jail she was denied 11 proper medical care for various conditions which caused her permanent injuries. Named as 12 defendants are Wellpath, LLC, Dr. Dinesh Nagar, Lieutenant Andrew Hagen, Lieutenant 13 Katherine Raymos, Sergeant Jeff Poblete, and, the Solano County Sheriff. The second amended 14 complaint raises a Fourteenth Amendment due process claim based on deliberate indifference to 15 plaintiff’s serious medical needs, a Monell1 municipal liability claim, and state law negligence, 16 failure to summon medical care, and Bane Act claims against defendants. 17 IV. Analysis 18 Examination of the amended complaint and review of court records reveal that plaintiff’s 19 amended complaint contains allegations that are identical to, and therefore duplicative of, claims 20 raised in Dailey v. Ellis, No. 2:23-cv-00786-TLN-CSK (E.D. Cal.).2 “A complaint ‘that merely 21 repeats pending or previously litigated claims’” is subject to dismissal under 28 U.S.C. § 1915(e). 22 Cato v. United States, 70 F.3d 1103, 1105 (9th Cir. 1995) (quoting Bailey v. Johnson, 846 F.2d 23 1019, 1021 (5th Cir. 1988)). “[A] duplicative action arising from the same series of events and 24 alleging many of the same facts as an earlier suit” may be dismissed as frivolous or malicious 25

1 See Monell v. Dep't of Social Services, 436 U.S. 585 at 691, 694 (1978). 26 2 The court hereby takes judicial notice of the docket in Dailey v. Ellis, No. 2:23-cv-00786-TLN- 27 CSK (E.D. Cal.). See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (finding that a court may take judicial notice of court records); United States v. Wilson, 631 F.2d 118, 119 28 (9th Cir. 1980). 1 under section 1915(e). See Bailey, 846 F.2d at 1021. Plaintiff was granted leave to file a second 2 amended complaint on July 8, 2024 in Dailey v. Ellis, No. 2:23-cv-00786-TLN-CSK. Instead of 3 filing the second amended complaint in that case, plaintiff filed it in the present action.3 Having 4 reviewed the facts and allegations alleged in Dailey v. Ellis, this court finds that this earlier filed 5 civil action involves the same allegations against the same defendants at the Solano County Jail. 6 Based on this analysis, the undersigned recommends dismissing plaintiff’s second amended 7 complaint as duplicative of Dailey v. Ellis, No. 2:23-cv-00786-TLN-CSK. It is further 8 recommended that the second amended complaint be dismissed without leave to amend. 9 V. Plain Language Summary for Party Proceeding Without a Lawyer 10 The following information is meant to explain this order in plain English and is not 11 intended as legal advice. 12 The court has reviewed the allegations in your second amended complaint and determined 13 that they are the exact same claims filed in an earlier case that is currently pending in this same 14 court. The law does not allow the same claims to be raised in multiple lawsuits. Since this action 15 was filed later in time, it is recommended that it be dismissed. 16 If you do not agree with this recommendation, you can explain why it is not correct. 17 Label your explanation as “Objections to Magistrate Judge’s Findings and Recommendations.” 18 The district judge assigned to your case will review the file and make the final decision. 19 In accordance with the above, IT IS HEREBY ORDERED that the Findings and 20 Recommendations issued on February 28, 2024 (ECF No. 12) are vacated. 21 IT IS FURTHER RECOMMENDED that: 22 1. Plaintiff’s second amended complaint be dismissed as duplicative and that leave to 23 amend the complaint be denied. 24 2. The Clerk of Court be directed to close this action. 25 These findings and recommendations are submitted to the United States District Judge 26

27 3 A review of the docket in Dailey v. Ellis, No. 2:23-cv-00786-TLN-CSK, indicates that the same second amended complaint was attached to plaintiff’s objections filed on September 19, 2024 and 28 is pending the court’s review. 1 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 2 || after being served with these findings and recommendations, any party may file written 3 || objections with the court and serve a copy on all parties. Such a document should be captioned 4 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 5 || objections shall be served and filed within fourteen days after service of the objections. The 6 || parties are advised that failure to file objections within the specified time may waive the right to 7 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 8 | Dated: October 8, 2024 / hice ANKE) flo ° CAROLYN K DELANEY? 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 12/dail0788.F&R.duplicative 17 18 19 20 21 22 23 24 25 26 27 28