(PC) Jones v. Hernandez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DRAKE JONES, No. 2:21-cv-00895-CKD P 12 Plaintiff, 13 v. ORDER AND 14 HERNANDEZ, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 On May 17, 2021, the court received plaintiff’s complaint against four correctional 21 officers at the California Health Care Facility alleging that they used excessive force against him 22 during a cell extraction on October 4, 2020. ECF No. 1. A duplicate copy of the same complaint 23 was received on the same day and opened as a separate civil action in Jones v. Hernandez, Case 24 No. 2:21-cv-00886-DMC (E.D. Cal.). This complaint has been screened and was ordered served 25 on the same four defendants on August 4, 2021. See ECF No. 8 in Case No. 2:21-cv-00886- 26 DMC. 27 //// 28 //// ] Based on a review of the docket, it appears to the court that this case may have been 2 | opened in error as duplicative of Case No. 2:21-cv-00886-DMC.' Therefore, the court will deny 3 | plaintiff's motion to proceed in forma pauperis as moot and will recommend that this case be 4 || dismissed as duplicative. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Clerk of Court randomly assign this matter to a district court judge. 7 2. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is denied as moot. 8 IT IS FURTHER RECOMMENDED that this action be dismissed as duplicative of Jones 9 || v. Hernandez, 2:21-cv-00886-DMC (E.D. Cal.). 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 || objections shall be served and filed within fourteen days after service of the objections. The 16 || parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 | Dated: August 9, 2021 □□ / dp ai 19 CAROLYNK. DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 22 || 12/one0895.F&R.duplicative.docx 23 24 25 | 1 In Adams v. California Dep’t of Health Servs., 487 F.3d 684, 688 (2007), the Ninth Circuit 26 || tecognized that a district court has the discretion to dismiss a later-filed action that is duplicative of a prior proceeding. In doing so, it recognized that “[p]laintiffs generally have ‘no right to 27 || maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.’” Adams, 487 F.3d at 688 (citation omitted), overruled on 28 | other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).