Opinion
1:23-cv-01579-EPG (PC)
11-17-2023
JOHN PAUL FRANK SCHOWACHERT, Plaintiff, v. BILL POLLEY, Defendant.
FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION AS DUPLICATIVE OF CASE NO. 1:21-cv-01107-ADA-HBK (ECF No. 1)
ORDER DIRECTING CLERK OF COURT TO ASSIGN A DISTRICT JUDGE
Plaintiff John Paul Frank Schowachert is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff's Complaint generally alleges that the Jail Commander at Tuolumne County Jail, by directing medical staff to alter reports, helped cover up an assault on the Plaintiff by the guards that resulted in brain injury so severe, the assault amounted to an attempted murder on Plaintiff's life. For the following reasons, the Court recommends that this action be dismissed as duplicative of Schowachert v. Polley, No. 1:21-cv-001107-ADA-HBK (Schowachert I).
I. SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court also screens complaints brought by persons proceeding pro se and in forma pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(ii).
II. BACKGROUND
A. Plaintiff's allegations in the instant case
Plaintiff is currently housed at the Salinas Valley State Prison, in Soledad, California. The events in the complaint are alleged to have occurred while Plaintiff was housed at the Tuolumne County Jail. Plaintiff names as the sole defendant Bill Polley, Jail Commander at the Tuolumne County Jail. (ECF No. 1, at 2.)
Plaintiff's allegations in this case are as follows:
Bill Polley as a Jail Commander helped cover up the premeditated attempted murder on Plaintiff's life by encouraging medical staff at Tuolumne County Jail to doctor reports. (Id. at 3.) Plaintiff alleges that medical staff falsified medical reports to make it look like a drug overdose and left out “hemitopa” 2 ½ cm from ruptured blood vessel on his head. (Id. at 3, 4.) This ruptured brain vessel resulted from blunt force trauma from officer's nightsticks. (Id. at 3.) Plaintiff developed drop seizures caused by massive scarring on his brain from surgery. (Id. at 3.) All this caused Plaintiff to lose his wife, house, kids, ability to enjoy life, hunt with a compoundbow, fish, hike, and drive. (Id. at 3.) Plaintiff seeks damages of one hundred million dollars due to “amount of personal loss financial an[d] family.” (Id. at 6.)
B. Earlier Filed Case
Plaintiff currently has another civil rights case pending in this District. On June 16, 2021, Plaintiff filed Schowachert v. Polley, Case No. 2:21-cv-01064-JDP in the Sacramento Division of the Eastern District of California. That action was transferred to the Fresno Division on July 22, 2021, and was assigned Case No. 1:21-cv-01107-HBK (Schowachert I). In Schowachert I, a civil rights action filed pursuant to 42 U.S.C. § 1983, Plaintiff names as defendants: (1) Bill Polley, Jail Commander Sheriff's Coroner at Tuolumne County Jail Sheriff's Department; and (2) all officers on duty January 13, 2017. Schowachert I, ECF No. 1, at 2. In Schowachert I, Plaintiff's allegations are as follows:
On January 13, 2017, all officers on duty conspired to murder Plaintiff, causing a closed head traumatic brain injury that caused Plaintiff to lose: the ability to ever drive a car, house, wife, and kids. Schowachert I, ECF No. 1, at 3. The last time Plaintiff saw his wife she was slamming him into his sister's car with his head bouncing off it, saying she didn't get into the marriage to take care of a “retard in a wheelchair” who will never walk, talk, or be able to wrap his arms around her right ever again. Id. His son said he no longer likes to be around due to Plaintiff not being able to take him fishing, hunting, or hiking ever again, or drive him around due to massive scarring on Plaintiff's brain from his brain surgery. Id. This causes Plaintiff to have drop seizures where he never had a seizure in his life. Id. Plaintiff further alleges that Bill Polley violated his rights due to hiring bad cops and not disciplining them for attempted murder. Id. at 4. Plaintiff seeks ten million dollars in damages for loss of life, wife, kids, home, truck, job, driver's license, etc. Id. at 6. Plaintiff also seeks prosecution of all officers on duty. Id.
At this time, Schowachert I remains an open, pending case.
C. Closed duplicative action
Plaintiff had another case dismissed for being duplicative of Schowachert I. On September 20, 2022, Plaintiff filed § 1983 in forma pauperis complaint against Bill Polley. Schowachert v. Polley, No. 1:22-cv-01249-JLT-BAM (E.D. Cal. Nov. 8, 2022) (SchowachertII). The Court in Schowachert II held that the Plaintiff raised the same claims against the same defendant, arising out of the same events, seeking the same relief. Schowachert II, ECF no 9, at 1. The Court dismissed Schowachert II for being duplicative of Schowachert I. Id.
III. DISCUSSION
A. Legal Standards
The Prison Litigation Reform Act of 1995 (PLRA) requires courts to screen prisoner complaints and dismiss those that are frivolous or malicious, which encompasses duplicative cases where a complaint merely repeats pending or previously litigated claims. See 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2)(B)(i); Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (citing earlier version of § 1915(e)); see also Denton v. Hernandez, 504 U.S. 25, 30 (1992) (recognizing Congress's concern regarding IFP litigants “filing frivolous, malicious, or repetitive lawsuits”) (emphasis added). “To determine whether a suit is duplicative, we borrow from the test for claim preclusion.” Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by Taylor v. Stargell, 553 U.S. 880, 904 (2008). “‘[T]he true test of the sufficiency of a plea of ‘other suit pending' in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as ‘the thing adjudged,' regarding the matters at issue in the second suit.'” Id. (second alteration in original) (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)).
The primary difference between dismissing a case as duplicative and dismissing a case under the doctrine of claim preclusion is that a final judgment need not have been entered to dismiss a case as duplicative while claim preclusion requires a final judgment on the merits. Cook v. C.R. England, Inc., 2012 WL 2373258, at *3 (C.D. Cal. June 21, 2012). A final judgment has not been entered in Schowachert v. Polley, No. 1:21-cv-001107-ADA-HBK (Schowachert I). Accordingly, the Court does not apply the doctrine of claim preclusion.
“Thus, in assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties . . . to the action, are the same.” Adams, 487 F.3d at 689; see also Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993) (“[A] suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions.” (internal quotation marks omitted)). “After weighing the equities of the case, the district court may exercise its discretion to dismiss a duplicative later-filed action, to stay that action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions.” Adams, 487 F.3d at 688.
B. Analysis
In assessing whether this proceeding is duplicative of Schowachert I, the Court first examines causes of action. In both cases, Plaintiff alleges he suffered a brain injury at the hands of officers hired or supervised by Bill Polley while Plaintiff was housed at the Tuolumne County Jail. In both cases, Plaintiff claims that his injuries were severe enough to amount to “an attempted murder.” In both cases, Plaintiff alleges that as a result of his injuries, he developed seizures, became disabled, and lost his wife, kids, ability to drive, hunt, or fish. In comparing these complaints, “it is clear that the . . . actions share a common transaction nucleus of facts.” Adams, 487 F.3d at 689.
Next, the Court considers parties and relief sought. The single defendant in this case, Bill Polley, is also named in Schowachert I; additional defendants in Schowachert I include “all officers on duty on January 13, 2017.” Compare ECF No. 1, at 2, with Schowachert I, ECF No. 1, at 2-3. Likewise, in both cases, Plaintiff requests relief in the form of monetary damages. Compare ECF No. 1, at 6, with Schowachert I, ECF No. 1, at 2.
To the extent the cases differ, Schowachert I includes additional unknown and unnamed defendants, and seeks additional, yet unavailable, form of relief, but otherwise encompasses the same claims, defendant, and relief sought in the instant action. Therefore, under the Adams test, when Schowachert I is disposed of “as the thing adjudged,” it would have a preclusive effect “regarding the matters at issue in the second suit,” which is the instant action. Adams, 487 F.3d at 689. In these circumstances, this Court has previously held the cases to be duplicative. See, e.g., Schowachert v. Polley, No. 1:22-cv-1249-JLT-BAM, 2022 WL 16811914, at *1 (E.D. Cal. Nov. 8, 2022); Osborne v. Clavache, No. 2:20-cv-02341-KJM-JDP, 2021 WL 4751372, at *1 (E.D. Cal. Oct. 12, 2021).
Based on the foregoing, the Court finds that the claims, relief sought, and parties to this action and Schowachert I are the same. The instant case is therefore duplicative of Schowachert I. “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy.” Adams, 487 F.3d at 692. Thus, weighing the equities, the Court recommends that this case be dismissed under § 1915(e) because it is duplicative of Schowachert I, his earlier filed, currently pending case.
IV. ORDER AND RECOMMENDATIONS
Based on the foregoing, IT IS RECOMMENDED that this action be dismissed with prejudice as duplicative.
The Ninth Circuit has recognized that a duplicative suit is either frivolous or malicious, and thus the dismissal of such a suit qualifies as a strike within the meaning of the three strikes provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (recognizing that a duplicative complaint is either frivolous or malicious); LeBlanc v. Asuncion, 699 Fed.Appx. 762 (9th Cir. 2017) (holding that dismissal of duplicative complaint was properly deemed a strike) (citing Cato, 70 F.3d at 1105 n.2).
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, as required by 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
The Clerk of the Court is directed to randomly assign a district judge to this action.
IT IS SO ORDERED.