Opinion
Case No. 2:20-cv-00436-KJD-BNW
08-31-2020
Adrian Johnson, Plaintiff, v. Jeremy Pickett, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
Before the Court is Plaintiff's renewed In Forma Pauperis application (ECF No. 5), his complaint (ECF No. 1), and a motion requesting the screening of the complaint (ECF No. 6). In Forma Pauperis Application
Plaintiff demonstrated an inability to prepay fees or costs or give security for them. Accordingly, the court will grant his request to proceed in forma pauperis. The court now screens Plaintiff's complaint. Complaint and Request to Screen
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2).
In the process of screening this complaint, the Court noticed that on page six of his complaint, Plaintiff indicates that there is another case currently pending in this district (19-cv-2224-RFB-NJK) arising out of the same or similar facts alleged in the instant complaint. Indeed, the complaint filed in case No. 19-cv-2224-RFB-NJK is based on the same facts, and alleges many of the same counts, as those underlying the instant complaint. Because the Court will screen that complaint in due course, the Court recommends that the complaint in this case be dismissed with prejudice. See Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 623 (9th Cir.1991) (when a complaint involving the same parties and issues has already been filed in another federal district court, the court has discretion to abate or dismiss the second action). As a result, this Court recommend that the complaint be dismissed with prejudice and denies the request to screen as moot.
In fact, Plaintiff has a pending motion to stay in case No. 19-cv-2224-RFB-NJK recognizing that his complaint alleges facts tied to an on-going criminal case which has not yet been adjudicated.
While that case relies on principles of comity, the underlying rationale of trying to avoid inconsistent holdings applies with equal force to duplicate cases filed in the District of Nevada. --------
IT IS THEREFORE ORDERED that Plaintiff's in forma pauperis application (ECF No. 5) is granted.
IT IS THEREFORE RECOMMENDED that Plaintiff's Complaint (ECF No. 1) be dismissed with prejudice and that the request to screen the complaint (ECF No. 6) be denied as moot.
NOTICE
This report and recommendation is submitted to the United States district judge assigned to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation may file a written objection supported by points and authorities within fourteen days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
DATED: August 31, 2020
/s/_________
BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE