Opinion
NO. CV 18-921-FMO (AGR)
06-07-2018
CHARLES KELLER COOPER, JR., Plaintiff, v. UNKNOWN DEPUTY 1, et al., Defendants.
ORDER OF DISMISSAL WITHOUT PREJUDICE OF DUPLICATIVE ACTION
For the reasons discussed below, the Court dismisses this action without prejudice as duplicative of claims already asserted in a pending civil rights action filed by the same Plaintiff. The Court also vacates the Order granting Plaintiff's request to proceed without prepayment of filing fees so that Plaintiff is not charged a filing fee for this dismissed duplicative action.
Factual Background
On February 6, 2018, Plaintiff filed a civil rights complaint in this action against the Los Angeles County Sheriff's Department ("LASD"), Five Unknown Deputies and 1 Unknown Sergeant. The complaint has not yet been served.
In his complaint, Plaintiff alleges that he informed the Men's Central Jail booking doctor that he could not walk because he had been assaulted in the parking lot of LCMC hospital the night before. After doctors put him on a gurney, deputies asked him to get up and walk. When Plaintiff explained what happened, the deputies left and came back with a sergeant and other deputies. Plaintiff was told to walk or else he would get "fucked up." A taser was aimed at his face. Plaintiff put up his hand to block the taser. A deputy grabbed his hand and pulled him to the ground. Plaintiff was tased and punched. His hair was pulled with a foot on his neck.
Plaintiff previously filed a complaint in Cooper v. Los Angeles County Sheriff Dep't, et al., CV 17-8335. The defendants in that action are LASD, Sergeant Little, Deputy Marbach, Ruis and unknown deputies.
In the prior action, Plaintiff alleges the assault in the LCMC parking lot. Plaintiff alleges that, "the very next day in Men's Central Jails R and R I was told to walk." When Plaintiff could not walk, Plaintiff was grabbed, thrown to the floor and tazed. A deputy put his foot on the back of Plaintiff's neck while pulling his hair. No one believed Plaintiff had been injured in the LCMC parking lot. (Compl. at 7.)
Page citations are to the page numbers assigned by CM/ECF in the header. --------
Discussion
"Plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant." Adams v. California Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007).
On May 15, 2018, the magistrate judge issued an order to show cause why this action should not be closed as duplicative. (Dkt. No. 16.) Although the response was not due until June 13, 2018, Plaintiff filed a response on May 24, 2018. (Dkt. No. 17.)
Plaintiff's response confirms that he is alleging two different assaults, the first of which occurred in the L.C.M.C. parking lot and the second of which occurred one day later. Plaintiff requested a copy of the complaint in the earlier case, CV 17-8335, which has been forwarded to him.
Plaintiff asks whether he should amend both cases. The answer is no. The two assaults are already alleged in the earlier case, CV 17-8335. The defendants appear duplicative. The LASD is already a defendant in the earlier filed action. The only individual defendants in this action are unknown deputies, and there are also unknown Doe defendants in the earlier filed action. There appears to be no need for this action.
IT IS THEREFORE ORDERED that this action is DISMISSED WITHOUT PREJUDICE as duplicative of Cooper v. Los Angeles County Sheriff Dep't, et al., CV 17-8335.
IT IS FURTHER ORDERED that the Order Re Request To Proceed Without Prepayment Of Filing Fees filed on March 16, 2018 is VACATED. A copy of this order shall be transmitted to the prison facility. DATED: June 7, 2018
/s/_________
FERNANDO M. OLGUIN
United States District Judge