1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN PAUL FRANK SCHOWACHERT, Case No. 1:21-cv-01104-EPG (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE 14 KELLEY SANTORO, et al., DISMISSED AS DUPLICATIVE OF CASE NOS. 1:21-cv-00947-GSA AND 1:21-cv- 15 Defendants. 00975-HBK AND PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS BE 16 DENIED AS MOOT 17 (ECF Nos. 1, 2) 18 FOURTEEN (14) DAY DEADLINE 19 ORDER DIRECTING CLERK OF COURT TO 20 ASSIGN A DISTRICT JUDGE TO THIS CASE 21 22 Plaintiff John Paul Frank Schowachert (“Plaintiff”) is proceeding pro se in this civil rights 23 action filed pursuant to 42 U.S.C. § 1983. On July 21, 2021, Plaintiff filed the complaint 24 commencing this action along with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) For 25 the following reasons, the Court recommends that this action be dismissed as duplicative of 26 Schowachert v. Santoro, et al., Case No. 1:21-cv-00947-GSA (“Schowachert I”) and 27 Schowachert v. Sorano, et al., Case No. 1:21-cv-00975-HBK (“Schowachert II”) and that the 28 motion to proceed in forma pauperis be denied as moot. 1 I. LEGAL STANDARD 2 “Plaintiffs generally have ‘no right to maintain two separate actions involving the same 3 subject matter at the same time in the same court and against the same defendant.’” Adams v. Cal. 4 Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 5 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 6 (2008). 7 “To determine whether a suit is duplicative, we borrow from the test for claim 8 preclusion.”1 Adams, 487 F.3d at 688. “‘[T]he true test of the sufficiency of a plea of ‘other suit 9 pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as ‘the 10 thing adjudged,’ regarding the matters at issue in the second suit.’” Id. (second alteration in 11 original) (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). “Thus, in assessing whether 12 the second action is duplicative of the first, we examine whether the causes of action and relief 13 sought, as well as the parties . . . to the action, are the same.” Adams, 487 F.3d at 689; see also 14 Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993) (“[A] suit is duplicative if the 15 claims, parties, and available relief do not significantly differ between the two actions.” (internal 16 quotation marks omitted)). 17 “After weighing the equities of the case, the district court may exercise its discretion to 18 dismiss a duplicative later-filed action, to stay that action pending resolution of the previously 19 filed action, to enjoin the parties from proceeding with it, or to consolidate both actions.” Adams, 20 487 F.3d at 688. 21 II. DISCUSSION 22 Plaintiff has several civil rights cases pending in this District. In relevant part, Plaintiff 23 filed the complaint in Schowachert I on May 13, 2021, along with a motion to proceed in forma 24 pauperis. (Schowachert I, Case No. 1:21-cv-00947-GSA, ECF Nos. 1-2.) The complaint names 25
1 The primary difference between dismissing a case as duplicative and dismissing a case under the doctrine of claim 26 preclusion is that a final judgment need not have been entered to dismiss a case as duplicative while claim preclusion requires a final judgment on the merits. Cook v. C.R. England, Inc., 2012 WL 2373258, at *3 (C.D. Cal. June 21, 27 2012). A final judgment has not been entered in Schowachert v. Santoro, et al., Case No. 1:21-cv-00947-GSA or Schowachert v. Sorano, et al., Case No. 1:21-cv-00975-HBK. Accordingly, the Court does not apply the doctrine of 28 claim preclusion. 1 the following defendants: (1) Kelley Santoro, Warden Representative at Kern Valley State Prison 2 (“KVSP”); (2) Tapia, Floor Officer at KVSP; and (3) Danzart, Prisoner Mack Rep Cops Enforcer 3 at KVSP. (Id at ECF No. 1.) The case was originally filed in the Sacramento Division and was 4 transferred to the Fresno Division on June 17, 2021. (Id. at ECF No. 4.) On June 28, 2021, 5 Magistrate Judge Gary A. Austin issued an order directing Plaintiff to submit a signed motion to 6 proceed in forma pauperis or pay the filing fee within thirty (30) days. (Id. at ECF No. 6.) 7 Plaintiff filed the complaint and a motion to proceed in forma pauperis in Schowachert II 8 on June 16, 2021. (Schowachert II, Case No. 1:21-cv-00975-HBK, ECF Nos. 1-2.) The complaint 9 in Schowachert II names the following defendants: (1) Tapia, D4 Floor Officer at KVSP; (2) 10 Woods, Dentist at KVSP; (3) Kelley Sorano, Warden at KVSP; and (4) Danzart, Mack Rep Cops 11 Enforcer at KVSP. (Id. at ECF No. 1.) Schowachert II was also originally filed in the Sacramento 12 Division and was transferred to the Fresno Division on June 21, 2021. (Id. at ECF No. 4.) On 13 June 24, 2021, Magistrate Judge Helena M. Barch-Kuchta entered an order granting Plaintiff’s 14 motion to proceed in forma pauperis. (Id. at 8.) 15 Plaintiff filed this case on July 21, 2021, along with a motion to proceed in forma 16 pauperis. (ECF Nos. 1-2.) Plaintiff’s complaint names the following defendants: (1) Kelley 17 Santoro, Warden at KVSP; (2) Woods, Dentist at KVSP; and (3) Tapia, Floor Officer at KVSP. 18 (Id. at 2.) 19 In this case, as well as in Schowachert I and Schowachert II, Plaintiff alleges that 20 Defendant Tapia had the “mack rep” Danzart beat and rob Plaintiff in retaliation for writing him 21 up.2 (ECF No. 1 at 3-4; Schowachert I, ECF No. 1 at 3; Schowachert II, ECF No. 1 at 3.) In this 22 case and in Schowachert II, Plaintiff alleges that Defendant Santoro3 is responsible for allowing 23
2 In his complaint in this case, Plaintiff alleges that he had a seizure, an unidentified individual told whites that 24 Plaintiff sold his cane as weapon stock to Mexican gang members, and told whites that it was Plaintiff’s fault that they were stripped of extra belongings. (ECF No. 1 at 4.) These appear to be additional factual allegations in support 25 of Plaintiff’s claims against Tapia and/or Danzart for beating and robbing Plaintiff in retaliation for “writ[ing] up” Tapia. To the extent Plaintiff wishes to include additional factual allegations in support of his claims, he should file 26 an appropriate request to amend or supplement the complaint in his original case rather than filing additional new cases. 27 3 In Schowachert II, Plaintiff identifies Kelley Sorano while in this case he identifies Kelley Santoro, but describes 28 her as the warden at KVSP in both complaints. 1 officers to torture and retaliate against ADA prisoners. (ECF No. 1 at 3; Schowachert II, ECF No. 2 1 at 4.) In this case and in Schowachert I, Plaintiff alleges Defendant Woods destroyed Plaintiff’s 3 teeth by excessive grinding. (ECF No. 1 at 4; Schowachert I, ECF No. 1 at 4.) In comparing the 4 three complaints, “it is clear that the . . . actions share a common transaction nucleus of facts.” 5 Adams, 487 F.3d at 689. 6 Additionally, all of the defendants named in this case are also named Schowachert II. Two 7 out of the three defendants named in this case and in Schowachert II are also named in 8 Schowachert I. Likewise, in all three cases, Plaintiff requests relief in the form of return of the 9 property taken from him as well as monetary damages.4 10 Based on the foregoing, the Court finds that the claims, relief sought, and parties to this 11 action and to Schowachert I and Schowachert II are the same. The instant case is therefore 12 duplicative of Schowachert I and Schowachert II.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN PAUL FRANK SCHOWACHERT, Case No. 1:21-cv-01104-EPG (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE 14 KELLEY SANTORO, et al., DISMISSED AS DUPLICATIVE OF CASE NOS. 1:21-cv-00947-GSA AND 1:21-cv- 15 Defendants. 00975-HBK AND PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS BE 16 DENIED AS MOOT 17 (ECF Nos. 1, 2) 18 FOURTEEN (14) DAY DEADLINE 19 ORDER DIRECTING CLERK OF COURT TO 20 ASSIGN A DISTRICT JUDGE TO THIS CASE 21 22 Plaintiff John Paul Frank Schowachert (“Plaintiff”) is proceeding pro se in this civil rights 23 action filed pursuant to 42 U.S.C. § 1983. On July 21, 2021, Plaintiff filed the complaint 24 commencing this action along with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) For 25 the following reasons, the Court recommends that this action be dismissed as duplicative of 26 Schowachert v. Santoro, et al., Case No. 1:21-cv-00947-GSA (“Schowachert I”) and 27 Schowachert v. Sorano, et al., Case No. 1:21-cv-00975-HBK (“Schowachert II”) and that the 28 motion to proceed in forma pauperis be denied as moot. 1 I. LEGAL STANDARD 2 “Plaintiffs generally have ‘no right to maintain two separate actions involving the same 3 subject matter at the same time in the same court and against the same defendant.’” Adams v. Cal. 4 Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 5 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 6 (2008). 7 “To determine whether a suit is duplicative, we borrow from the test for claim 8 preclusion.”1 Adams, 487 F.3d at 688. “‘[T]he true test of the sufficiency of a plea of ‘other suit 9 pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as ‘the 10 thing adjudged,’ regarding the matters at issue in the second suit.’” Id. (second alteration in 11 original) (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). “Thus, in assessing whether 12 the second action is duplicative of the first, we examine whether the causes of action and relief 13 sought, as well as the parties . . . to the action, are the same.” Adams, 487 F.3d at 689; see also 14 Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993) (“[A] suit is duplicative if the 15 claims, parties, and available relief do not significantly differ between the two actions.” (internal 16 quotation marks omitted)). 17 “After weighing the equities of the case, the district court may exercise its discretion to 18 dismiss a duplicative later-filed action, to stay that action pending resolution of the previously 19 filed action, to enjoin the parties from proceeding with it, or to consolidate both actions.” Adams, 20 487 F.3d at 688. 21 II. DISCUSSION 22 Plaintiff has several civil rights cases pending in this District. In relevant part, Plaintiff 23 filed the complaint in Schowachert I on May 13, 2021, along with a motion to proceed in forma 24 pauperis. (Schowachert I, Case No. 1:21-cv-00947-GSA, ECF Nos. 1-2.) The complaint names 25
1 The primary difference between dismissing a case as duplicative and dismissing a case under the doctrine of claim 26 preclusion is that a final judgment need not have been entered to dismiss a case as duplicative while claim preclusion requires a final judgment on the merits. Cook v. C.R. England, Inc., 2012 WL 2373258, at *3 (C.D. Cal. June 21, 27 2012). A final judgment has not been entered in Schowachert v. Santoro, et al., Case No. 1:21-cv-00947-GSA or Schowachert v. Sorano, et al., Case No. 1:21-cv-00975-HBK. Accordingly, the Court does not apply the doctrine of 28 claim preclusion. 1 the following defendants: (1) Kelley Santoro, Warden Representative at Kern Valley State Prison 2 (“KVSP”); (2) Tapia, Floor Officer at KVSP; and (3) Danzart, Prisoner Mack Rep Cops Enforcer 3 at KVSP. (Id at ECF No. 1.) The case was originally filed in the Sacramento Division and was 4 transferred to the Fresno Division on June 17, 2021. (Id. at ECF No. 4.) On June 28, 2021, 5 Magistrate Judge Gary A. Austin issued an order directing Plaintiff to submit a signed motion to 6 proceed in forma pauperis or pay the filing fee within thirty (30) days. (Id. at ECF No. 6.) 7 Plaintiff filed the complaint and a motion to proceed in forma pauperis in Schowachert II 8 on June 16, 2021. (Schowachert II, Case No. 1:21-cv-00975-HBK, ECF Nos. 1-2.) The complaint 9 in Schowachert II names the following defendants: (1) Tapia, D4 Floor Officer at KVSP; (2) 10 Woods, Dentist at KVSP; (3) Kelley Sorano, Warden at KVSP; and (4) Danzart, Mack Rep Cops 11 Enforcer at KVSP. (Id. at ECF No. 1.) Schowachert II was also originally filed in the Sacramento 12 Division and was transferred to the Fresno Division on June 21, 2021. (Id. at ECF No. 4.) On 13 June 24, 2021, Magistrate Judge Helena M. Barch-Kuchta entered an order granting Plaintiff’s 14 motion to proceed in forma pauperis. (Id. at 8.) 15 Plaintiff filed this case on July 21, 2021, along with a motion to proceed in forma 16 pauperis. (ECF Nos. 1-2.) Plaintiff’s complaint names the following defendants: (1) Kelley 17 Santoro, Warden at KVSP; (2) Woods, Dentist at KVSP; and (3) Tapia, Floor Officer at KVSP. 18 (Id. at 2.) 19 In this case, as well as in Schowachert I and Schowachert II, Plaintiff alleges that 20 Defendant Tapia had the “mack rep” Danzart beat and rob Plaintiff in retaliation for writing him 21 up.2 (ECF No. 1 at 3-4; Schowachert I, ECF No. 1 at 3; Schowachert II, ECF No. 1 at 3.) In this 22 case and in Schowachert II, Plaintiff alleges that Defendant Santoro3 is responsible for allowing 23
2 In his complaint in this case, Plaintiff alleges that he had a seizure, an unidentified individual told whites that 24 Plaintiff sold his cane as weapon stock to Mexican gang members, and told whites that it was Plaintiff’s fault that they were stripped of extra belongings. (ECF No. 1 at 4.) These appear to be additional factual allegations in support 25 of Plaintiff’s claims against Tapia and/or Danzart for beating and robbing Plaintiff in retaliation for “writ[ing] up” Tapia. To the extent Plaintiff wishes to include additional factual allegations in support of his claims, he should file 26 an appropriate request to amend or supplement the complaint in his original case rather than filing additional new cases. 27 3 In Schowachert II, Plaintiff identifies Kelley Sorano while in this case he identifies Kelley Santoro, but describes 28 her as the warden at KVSP in both complaints. 1 officers to torture and retaliate against ADA prisoners. (ECF No. 1 at 3; Schowachert II, ECF No. 2 1 at 4.) In this case and in Schowachert I, Plaintiff alleges Defendant Woods destroyed Plaintiff’s 3 teeth by excessive grinding. (ECF No. 1 at 4; Schowachert I, ECF No. 1 at 4.) In comparing the 4 three complaints, “it is clear that the . . . actions share a common transaction nucleus of facts.” 5 Adams, 487 F.3d at 689. 6 Additionally, all of the defendants named in this case are also named Schowachert II. Two 7 out of the three defendants named in this case and in Schowachert II are also named in 8 Schowachert I. Likewise, in all three cases, Plaintiff requests relief in the form of return of the 9 property taken from him as well as monetary damages.4 10 Based on the foregoing, the Court finds that the claims, relief sought, and parties to this 11 action and to Schowachert I and Schowachert II are the same. The instant case is therefore 12 duplicative of Schowachert I and Schowachert II. Further, all three cases are in early stages and 13 have not yet been screened. Thus, weighing the equities, the Court recommends that this case be 14 dismissed. 15 III. CONCLUSION, ORDER, AND RECOMMENDATIONS 16 Accordingly, the Clerk of Court is HEREBY DIRECTED to randomly assign a District 17 Judge to this action. 18 Furthermore, it is HEREBY RECOMMENDED that: 19 1. This action be dismissed as duplicative of Schowachert v. Santoro, et al., Case No. 20 1:21-cv-00947-GSA and Schowachert v. Sorano, et al., Case No. 1:21-cv-00975- 21 HBK; 22 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be denied as moot; 23 and 24 3. The Clerk of Court be directed to close the case. 25 These findings and recommendations are submitted to the assigned United States District 26 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B). Within fourteen (14) days 27 4 In Schowachert II, Plaintiff also requests that charges be brought against officers who violated the ADA and 28 willingly assisted in torture against the disabled. 1 | after service of the findings and recommendations, Plaintiff may file written objections with the 2 | Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 3 | Recommendation.” The assigned United States District Court Judge will then review the 4 | Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to 5 || file objections within the specified time may waive the right to appeal the District Court’s order. 6 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 7 | 1391, 1394 (9th Cir. 1991)). 8 9 IT IS SO ORDERED. 10] Dated: _ July 22, 2021 [sf ey ll UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28