Opinion
No. CIV S-06-1858 MCE DAD P.
August 28, 2006
FINDINGS AND RECOMMENDATIONS
The plaintiff in this action is a state prisoner proceeding pro se with a complaint filed in this court on August 18, 2006. Although plaintiff alleges that he has filed only one other lawsuit while a prisoner, the court's records reveal that plaintiff has filed two other lawsuits in this court, that both of the lawsuits are pending at this time, and that one of the lawsuits alleges the same claim alleged in his latest lawsuit.
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).
On January 9, 2006, plaintiff filed a complaint dated October 18, 2005, against D.L. Runnels, warden of High Desert State Prison, challenging the institution's ban of materials displaying frontal nudity under the authority of a CDC administrative bulletin issued by David Tristan on July 10, 2002. (Ellis v. Runnels, case No. CIV S-06-0040 FCD PAN P.) By way of relief, plaintiff requested that the court abolish or ban the CDC's policy of banning magazines containing frontal nudity. On March 29, 2006, the complaint in case No. CIV S-06-0040 was dismissed with leave to file an amended complaint. Plaintiff's request for reconsideration of the dismissal of his complaint was denied on May 18, 2006, and plaintiff was granted an additional thirty days to file an amended complaint. In his amended complaint filed in case No. CIV S-06-0040 on June 12, 2006, plaintiff again contests the ban on publications containing frontal nudity under the authority of the 2002 administrative bulletin and requests that the ban be overturned. The amended pleading in that action is pending at the present time.
In the present action, plaintiff has submitted a complaint dated July 19, 2006, in which he identifies the defendants as David Tristan, Deputy Director of Field Operations, and D.L. Runnels, Warden of High Desert State Prison. Therein, plaintiff requests that the 2002 administrative bulletin issued by David Tristan be destroyed. Plaintiff also seeks a permanent injunction allowing inmates to receive material containing frontal nudity.
A copy of the 2002 administrative bulletin issued by David Tristan was attached to the initial complaint filed by plaintiff in case No. CIV S-06-0040. It is evident that David Tristan's name was known to plaintiff when he filed the complaint in January 2006. Moreover, plaintiff had an extended period of time in which to file an amended complaint in case No. CIV S-06-0040 in which he could have named David Tristan as a defendant. Plaintiff cannot proceed with two cases against defendant Runnels on the same claim, or with two cases challenging the same CDC policy. Due to the duplicative nature of the present action, the court will recommend that this case be dismissed without prejudice to proceedings in case No. CIV S-06-0040. See Fed.R.Civ.P. 41(b).
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.
These findings and recommendations will be submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. A document containing objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may, under certain circumstances, waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).