Opinion
2:20-cv-0081 TLN AC P
06-30-2021
GREGORY EUGENE HOWARD, Plaintiff, v. DR. ARYAD, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
A letter from plaintiff was docketed in this prisoner civil rights action on June 24, 2021. ECF No. 8. Based on its contents and timing, the court construes the letter as objections to the findings and recommendations issued on June 10, 2021, ECF No. 7, as well as a request for the appointment of counsel.
The previous recommendation for dismissal was based on plaintiff's failure to pay the filing fee or to file an application to proceed in forma pauperis. ECF No. 7. Plaintiff's objection letter states, in relevant part, that: (1) he is confused about the proceedings and his need to file an in forma pauperis application; (2) he would like counsel to be appointed to help him understand the proceeding; and (3) with the exception of one defendant, the instant action is identical to Howard v. Aryad, No. 19-cv-2062 KJM CKD (“Howard I”). See ECF No. 8.
A comparison of the complaint in the instant action with the complaint in Howard I reveals that the two complaints are, in fact, virtually identical. Compare ECF No. 1, with Howard I ECF No. 1. A plaintiff generally has no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendants. See Adams v. California Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other grounds by Taylor v. Sturgell 553 U.S. 880, 904 (2008). Therefore, the undersigned will vacate its June 10, 2021 findings and recommendations, and plaintiffs request for the appointment of counsel (see ECF No. 8, ¶ 3) will be denied as moot. In addition, the undersigned will recommend that this matter be dismissed as duplicative of Howard I.
The court does not, and need not, make any finding with respect to the question of whether the first amended complaint subsequently filed in Howard I (see ECF No. 14) and the original complaint in this action also align in terms of claims and defendants.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations issued June 10, 2021 (ECF No. 7), are VACATED, and
2. Plaintiff s request for the appointment of counsel (see ECF No. 8 at ¶ 3) is DENIED as moot.
IT IS FURTHER RECOMMENDED that this action be DISMISSED as duplicative of Howard v. Aryad, No. 19-cv-2062 KJM CKD.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a 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).