(PC) Schowachert v. Polley

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOHN PAUL FRANK SCHOWACHERT, Case No. 1:23-cv-01579-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION AS DUPLICATIVE 12 v. OF CASE NO. 1:21-cv-01107-ADA-HBK 13 BILL POLLEY, (ECF No. 1) 14 Defendant. OBJECTIONS, IF ANY, DUE IN 14 DAYS 15 ORDER DIRECTING CLERK OF COURT TO ASSIGN A DISTRICT JUDGE 16 17 Plaintiff John Paul Frank Schowachert is proceeding pro se and in forma pauperis in this 18 civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff’s Complaint generally alleges that 19 the Jail Commander at Tuolumne County Jail, by directing medical staff to alter reports, helped 20 cover up an assault on the Plaintiff by the guards that resulted in brain injury so severe, the assault 21 amounted to an attempted murder on Plaintiff’s life. For the following reasons, the Court 22 recommends that this action be dismissed as duplicative of Schowachert v. Polley, No. 1:21-cv- 23 001107-ADA-HBK (Schowachert I). 24 I. SCREENING REQUIREMENT 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 27 The Court also screens complaints brought by persons proceeding pro se and in forma pauperis. 28 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is 1 frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(ii). 3 II. BACKGROUND 4 A. Plaintiff’s allegations in the instant case Plaintiff is currently housed at the Salinas Valley State Prison, in Soledad, California. The 5 events in the complaint are alleged to have occurred while Plaintiff was housed at the Tuolumne 6 County Jail. Plaintiff names as the sole defendant Bill Polley, Jail Commander at the Tuolumne 7 County Jail. (ECF No. 1, at 2.) 8 Plaintiff’s allegations in this case are as follows: 9 Bill Polley as a Jail Commander helped cover up the premeditated attempted murder on 10 Plaintiff’s life by encouraging medical staff at Tuolumne County Jail to doctor reports. (Id. at 3.) 11 Plaintiff alleges that medical staff falsified medical reports to make it look like a drug overdose 12 and left out “hemitopa” 2 ½ cm from ruptured blood vessel on his head. (Id. at 3, 4.) This 13 ruptured brain vessel resulted from blunt force trauma from officer’s nightsticks. (Id. at 3.) 14 Plaintiff developed drop seizures caused by massive scarring on his brain from surgery. (Id. at 3.) 15 All this caused Plaintiff to lose his wife, house, kids, ability to enjoy life, hunt with a compound- 16 bow, fish, hike, and drive. (Id. at 3.) Plaintiff seeks damages of one hundred million dollars due to 17 “amount of personal loss financial an[d] family.” (Id. at 6.) 18 B. Earlier Filed Case 19 Plaintiff currently has another civil rights case pending in this District. On June 16, 2021, 20 Plaintiff filed Schowachert v. Polley, Case No. 2:21-cv-01064-JDP in the Sacramento Division of 21 the Eastern District of California. That action was transferred to the Fresno Division on July 22, 22 2021, and was assigned Case No. 1:21-cv-01107-HBK (Schowachert I). In Schowachert I, a civil 23 rights action filed pursuant to 42 U.S.C. § 1983, Plaintiff names as defendants: (1) Bill Polley, Jail Commander Sheriff’s Coroner at Tuolumne County Jail Sheriff’s Department; and (2) all 24 officers on duty January 13, 2017. Schowachert I, ECF No. 1, at 2. In Schowachert I, Plaintiff’s 25 allegations are as follows: 26 On January 13, 2017, all officers on duty conspired to murder Plaintiff, causing a closed 27 head traumatic brain injury that caused Plaintiff to lose: the ability to ever drive a car, house, 28 1 wife, and kids. Schowachert I, ECF No. 1, at 3. The last time Plaintiff saw his wife she was 2 slamming him into his sister’s car with his head bouncing off it, saying she didn’t get into the 3 marriage to take care of a “retard in a wheelchair” who will never walk, talk, or be able to wrap 4 his arms around her right ever again. Id. His son said he no longer likes to be around due to Plaintiff not being able to take him fishing, hunting, or hiking ever again, or drive him around due 5 to massive scarring on Plaintiff’s brain from his brain surgery. Id. This causes Plaintiff to have 6 drop seizures where he never had a seizure in his life. Id. Plaintiff further alleges that Bill Polley 7 violated his rights due to hiring bad cops and not disciplining them for attempted murder. Id. at 4. 8 Plaintiff seeks ten million dollars in damages for loss of life, wife, kids, home, truck, job, driver’s 9 license, etc. Id. at 6. Plaintiff also seeks prosecution of all officers on duty. Id. 10 At this time, Schowachert I remains an open, pending case. 11 C. Closed duplicative action 12 Plaintiff had another case dismissed for being duplicative of Schowachert I. On September 13 20, 2022, Plaintiff filed § 1983 in forma pauperis complaint against Bill Polley. Schowachert v. 14 Polley, No. 1:22-cv-01249-JLT-BAM (E.D. Cal. Nov. 8, 2022) (Schowachert II). The Court in 15 Schowachert II held that the Plaintiff raised the same claims against the same defendant, arising 16 out of the same events, seeking the same relief. Schowachert II, ECF no 9, at 1. The Court 17 dismissed Schowachert II for being duplicative of Schowachert I. Id. 18 III. DISCUSSION 19 A. Legal Standards 20 The Prison Litigation Reform Act of 1995 (PLRA) requires courts to screen prisoner 21 complaints and dismiss those that are frivolous or malicious, which encompasses duplicative 22 cases where a complaint merely repeats pending or previously litigated claims. See 28 U.S.C. 23 § 1915A; 28 U.S.C. § 1915(e)(2)(B)(i); Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (citing earlier version of § 1915(e)); see also Denton v. Hernandez, 504 U.S. 25, 30 (1992) 24 (recognizing Congress’s concern regarding IFP litigants “filing frivolous, malicious, or repetitive 25 lawsuits”) (emphasis added). “To determine whether a suit is duplicative, we borrow from the test 26 for claim preclusion.”1 Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) 27

28 1 The primary difference between dismissing a case as duplicative and dismissing a case under the doctrine 1 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by 2 Taylor v. Sturgell, 553 U.S. 880, 904 (2008). “‘[T]he true test of the sufficiency of a plea of 3 ‘other suit pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed 4 of, as ‘the thing adjudged,’ regarding the matters at issue in the second suit.’” Id. (second alteration in original) (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). 5 “Thus, in assessing whether the second action is duplicative of the first, we examine 6 whether the causes of action and relief sought, as well as the parties . . . to the action, are the 7 same.” Adams, 487 F.3d at 689; see also Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th 8 Cir. 1993) (“[A] suit is duplicative if the claims, parties, and available relief do not significantly 9 differ between the two actions.” (internal quotation marks omitted)). “After weighing the equities 10 of the case, the district court may exercise its discretion to dismiss a duplicative later-filed action, 11 to stay that action pending resolution of the previously filed action, to enjoin the parties from 12 proceeding with it, or to consolidate both actions.” Adams, 487 F.3d at 688. 13 B. Analysis 14 In assessing whether this proceeding is duplicative of Schowachert I, the Court first 15 examines causes of action. In both cases, Plaintiff alleges he suffered a brain injury at the hands 16 of officers hired or supervised by Bill Polley while Plaintiff was housed at the Tuolumne County 17 Jail. In both cases, Plaintiff claims that his injuries were severe enough to amount to “an 18 attempted murder.” In both cases, Plaintiff alleges that as a result of his injuries, he developed 19 seizures, became disabled, and lost his wife, kids, ability to drive, hunt, or fish. In comparing 20 these complaints, “it is clear that the . . . actions share a common transaction nucleus of facts.” 21 Adams, 487 F.3d at 689. 22 Next, the Court considers parties and relief sought. The single defendant in this case, Bill 23 Polley, is also named in Schowachert I; additional defendants in Schowachert I include “all officers on duty on January 13, 2017.” Compare ECF No. 1, at 2, with Schowachert I, ECF No. 1, 24 25 of claim preclusion is that a final judgment need not have been entered to dismiss a case as duplicative 26 while claim preclusion requires a final judgment on the merits. Cook v. C.R. England, Inc., 2012 WL 27 2373258, at *3 (C.D. Cal. June 21, 2012). A final judgment has not been entered in Schowachert v. Polley, No. 1:21-cv-001107-ADA-HBK (Schowachert I). Accordingly, the Court does not apply the doctrine of 28 claim preclusion. 1 at 2–3. Likewise, in both cases, Plaintiff requests relief in the form of monetary damages. 2 Compare ECF No. 1, at 6, with Schowachert I, ECF No. 1, at 2. 3 To the extent the cases differ, Schowachert I includes additional unknown and unnamed 4 defendants, and seeks additional, yet unavailable, form of relief, but otherwise encompasses the same claims, defendant, and relief sought in the instant action. Therefore, under the Adams test, 5 when Schowachert I is disposed of “as the thing adjudged,” it would have a preclusive effect 6 “regarding the matters at issue in the second suit,” which is the instant action. Adams, 487 F.3d at 7 689. In these circumstances, this Court has previously held the cases to be duplicative. See, e.g., 8 Schowachert v. Polley, No. 1:22-cv-1249-JLT-BAM, 2022 WL 16811914, at *1 (E.D. Cal. Nov. 9 8, 2022); Osborne v. Clavache, No. 2:20-cv-02341-KJM-JDP, 2021 WL 4751372, at *1 (E.D. 10 Cal. Oct. 12, 2021). 11 Based on the foregoing, the Court finds that the claims, relief sought, and parties to this 12 action and Schowachert I are the same. The instant case is therefore duplicative of Schowachert I. 13 “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of 14 proceedings, promotes judicial economy.” Adams, 487 F.3d at 692. Thus, weighing the equities, 15 the Court recommends that this case be dismissed under § 1915(e) because it is duplicative of 16 Schowachert I, his earlier filed, currently pending case. 17 IV. ORDER AND RECOMMENDATIONS 18 Based on the foregoing, IT IS RECOMMENDED that this action be dismissed with 19 prejudice as duplicative.2 20 These Findings and Recommendations will be submitted to the United States District 21 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 22 being served with these Findings and Recommendations, Plaintiff may file written objections 23 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified 24

25 2 The Ninth Circuit has recognized that a duplicative suit is either frivolous or malicious, and thus the dismissal of such a suit qualifies as a strike within the meaning of the three strikes provision of the Prison 26 Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). See Cato v. United States, 70 F.3d 1103, 1105 n.2 27 (9th Cir. 1995) (recognizing that a duplicative complaint is either frivolous or malicious); LeBlanc v. Asuncion, 699 F. App’x 762 (9th Cir. 2017) (holding that dismissal of duplicative complaint was properly 28 deemed a strike) (citing Cato, 70 F.3d at 1105 n.2). 1 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 2 | Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 The Clerk of the Court is directed to randomly assign a district judge to this action. 4 ; IT IS SO ORDERED.

6 | Dated: _November 17, 2023 [spe ey 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28