Opinion
2:21-cv-00895-CKD P
08-09-2021
DRAKE JONES, Plaintiff, v. HERNANDEZ, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
On May 17, 2021, the court received plaintiff's complaint against four correctional officers at the California Health Care Facility alleging that they used excessive force against him during a cell extraction on October 4, 2020. ECF No. 1. A duplicate copy of the same complaint was received on the same day and opened as a separate civil action in Jones v. Hernandez, No. 2:21-cv-00886-DMC (E.D. Cal.). This complaint has been screened and was ordered served on the same four defendants on August 4, 2021. See ECF No. 8 in No. 2:21-cv-00886-DMC.
Based on a review of the docket, it appears to the court that this case may have been opened in error as duplicative of No. 2:21-cv-00886-DMC. Therefore, the court will deny plaintiffs motion to proceed in forma pauperis as moot and will recommend that this case be dismissed as duplicative.
In Adams v. California Dep't of Health Servs., 487 F.3d 684, 688 (2007), the Ninth Circuit recognized that a district court has the discretion to dismiss a later-filed action that is duplicative of a prior proceeding. In doing so, it recognized that “[p]laintiffs 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, 487 F.3d at 688 (citation omitted), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of Court randomly assign this matter to a district court judge.
2. Plaintiffs motion to proceed in forma pauperis (ECF No. 2) is denied as moot.
IT IS FURTHER RECOMMENDED that this action be dismissed as duplicative of Jones v. Hernandez, 2:21-cv-00886-DMC (E.D. Cal.).
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 fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are 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).