Opinion
2:23-cv-1518 KJN P
12-18-2023
DARIUS DE'MON LAKE, Plaintiff, v. JEREMY ROWE, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff is a state prisoner, proceeding pro se. Plaintiff's complaint was filed with the court on July 24, 2023. On December 14, 2023, defendant filed a notice of related cases. Review of the court's records reveals that on July 5, 2023, plaintiff filed a complaint containing virtually identical Eighth Amendment allegations as to defendant Rowe. (Lake v. Covello, Case No. 2:23-cv-1311 DMC P (E.D. Cal.)).Due to the duplicative nature of the present action, the court recommends that the complaint be dismissed.
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
In both cases, plaintiff claims that he was subjected to excessive force on July 7, 2022, at Mule Creek State Prison. In the earlier action, plaintiff named defendant Rowe and two additional officers, Landre and Green. But in the instant action, plaintiff only named defendant Rowe. In the instant action, plaintiff also included a Ralph Act claim against defendant Rowe, but plaintiff consented to dismiss such claim (ECF No. 11), and it was dismissed on September 12, 2023 (ECF No. 12).
On December 14, 2023, defendant also filed a motion to extend the ADR stay and stay the case pending resolution of plaintiff's underlying criminal case. However, in light of these findings and recommendations, defendant is relieved of his obligation to respond to the October 31, 2023 order referring the case to the post-screening ADR project, such referral is rescinded, and defendants' motion is denied without prejudice.
Accordingly, IT IS HEREBY ORDERED that:
1. The ADR stay of this case (ECF No. 18) is lifted;
2. Defendant is relieved of his obligation to respond to the October 31, 2023 order referring the case to the post-screening ADR project, and such referral is rescinded;
3. Defendant's motion (ECF No. 23) is denied without prejudice; and
4. The Clerk of the Court is directed to assign a district judge to this case.
Further, IT IS RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections 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 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).