(PC) Mills v. Rivera

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 THOMAS K. MILLS, Case No. 1:21-cv-01324-EPG (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION BE 14 J. RIVERA, et al., DISMISSED AS DUPLICATIVE OF CASE NO. 1:21-CV-01193-HBK AND ALL 15 Defendants. PENDING MOTIONS BE DENIED AS MOOT [16] (ECF No. 1) [17] FOURTEEN (14) DAY DEADLINE [18] 19 ORDER DIRECT CLERK TO ASSIGN A DISTRICT JUDGE AND VACATING 20 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [21] 22 Plaintiff Thomas K. Mills (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983 . For the following reasons, 24 the Court recommends that this action be dismissed as duplicative of Thomas K. Mills v. I.Z. 25 Jones, et al., Case No. 1:21-cv-01193-HBK (“Mills I”). In light of this recommendation, the 26 Court will vacate the order granting in forma pauperis status and further recommends that all 27 other pending motions be denied as moot. 28 /// 1 I. LEGAL STANDARD 2 “Plaintiffs generally have ‘no right to maintain two separate actions involving the same 3 subject matter at the same time in the same court and against the same defendant.’” Adams v. Cal. 4 Dep’t of Health Servs., 487 F.3d 684 , 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 5 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880 , 904 6 (2008). 7 “To determine whether a suit is duplicative, we borrow from the test for claim 8 preclusion.”1 Adams, 487 F.3d at 688. “‘[T]he true test of the sufficiency of a plea of ‘other suit 9 pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as ‘the 10 thing adjudged,’ regarding the matters at issue in the second suit.’” Id. (second alteration in 11 original) (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). “Thus, in assessing whether 12 the second action is duplicative of the first, we examine whether the causes of action and relief 13 sought, as well as the parties . . . to the action, are the same.” Adams, 487 F.3d at 689; see also 14 Serlin v. Arthur Anderson & Co., 3 F.3d 221 , 223 (7th Cir. 1993) (“[A] suit is duplicative if the 15 claims, parties, and available relief do not significantly differ between the two actions.” (internal 16 quotation marks omitted)). 17 “After weighing the equities of the case, the district court may exercise its discretion to 18 dismiss a duplicative later-filed action, to stay that action pending resolution of the previously 19 filed action, to enjoin the parties from proceeding with it, or to consolidate both actions.” Adams, 20 487 F.3d at 688. 21 II. DISCUSSION 22 Plaintiff filed the complaint in Mills I on August 6, 2021. (Mills I, ECF No. 1.) On August 23 9, 2021, Magistrate Judge Helena Barch-Kuchta entered an order directing Plaintiff to submit an 24 application to proceed in forma pauperis or pay the filing fee within thirty (30) days. (Mills I, 25 ECF No. 4.) [26] 1 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 [27] 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 Mills I. Accordingly, the Court does not apply the doctrine of claim 28 preclusion. 1 On September 2, 2021, Plaintiff filed the complaint in this case along with a motion to 2 proceed in forma pauperis. (ECF Nos. 1, 2.) Plaintiff also filed a motion for appointment of 3 counsel and motion to stay that are currently pending before the Court. (ECF Nos. 3, 4.) 4 In this case, as well as in Mills I, Plaintiff alleges that officers at North Kern State Prison 5 beat him in the program office while he was cuffed. (ECF No. 1; Mills I, ECF No. 1.) In this case, 6 Plaintiff attaches a medical report indicating that the incident occurred on June 6, 2021. (ECF No. 7 1 at 4.) In Mills I, Plaintiff also alleges that the incident occurred on June 6, 2021. (Mills I, ECF 8 No. 1 at 3.) In comparing the complaints, “it is clear that the . . . actions share a common 9 transaction nucleus of facts.” Adams, 487 F.3d at 689. 10 The complaint in this case names J. Rivera and Z. Jones as defendants. (ECF No. 1.) The 11 Mills I complaint names I.Z. Jones, D. Tadia, and M. Naviaiz as defendants. (Mills I, ECF No. 1.) 12 Although Plaintiff names slightly different individuals as defendants, both cases describe the 13 incident at issue as involving three North Kern State Prison M-Yard officers. (ECF No. 1 at 3; 14 Mills I, ECF No. 1 at 3.)2 Plaintiff’s complaint in Mills I also indicates that he may be unsure of 15 the correct names for each defendant, as Plaintiff states that “Officer Z. Jones knows the names of 16 the other . . . officers I’m alleging in my complaint.” (Mills I, ECF No. 1 at 6.) Officer Z. Jones is 17 also named as a defendant in both cases.3 (ECF No. 1; Mills I, ECF No. 1.) 18 In this case, Plaintiff requests relief in the form of an explanation from each officer, to 19 have their jobs terminated, $20,000 from each defendant, and $5,000 in punitive damages from 20 each defendant. (ECF No. 1 at 3.) In Mills I, Plaintiff requests monetary payment of $10,000 from 21 each defendant and $5,000 for “negligence punitive damages award.” (Mills I, ECF No. 1 at 3.) [22] 23 2 Plaintiff attached a note to the end of the Mills I complaint stating that he would like to amend his complaint and “add[] officer Z. Jones as one of the . . . officers who beat me[.]” (Mills I, ECF No. 1 at 6.) Plaintiff further states “if 24 theres a case number, will you place the case number on my amended complaint and title page? Thank you.” (Id.) Although it is not clear from the record, Plaintiff may have intended the complaint filed in this case to serve as an 25 amended complaint in Mills I, and may have sought to file the in forma pauperis application in response to Magistrate Judge Barch-Kuchta’s order in Mills I. If Plaintiff intended to file the motion to proceed in forma pauperis, motion to appoint counsel, or motion to stay in Mills I, he should resubmit those filings and include the [26] Mills I case number, 1:21-cv-01193-HBK, in the caption. Additionally, to the extent Plaintiff wishes to include additional factual allegations in support of his claims, he should file an appropriate request to amend or supplement [27] the complaint in his original case rather than filing additional new cases. 28 3 In Mills I, Officer Z. Jones is identified as Officer I.Z. Jones. (See Mills I, ECF No. 1 at 2.) 1 Based on the foregoing, the Court finds that the claims, relief sought, and parties to this 2 action and to Mills I do not significantly differ. The instant case is therefore duplicative of Mills I. 3 Further, both cases are in early stages and have not yet been screened. Thus, weighing the 4 equities, the Court recommends that this case be dismissed. Additionally, in light of this 5 recommendation, the Court will recommend that the pending motion to appoint counsel and 6 motion to stay be denied as moot, and will further vacate its order granting in forma pauperis 7 status. 8 III. CONCLUSION, ORDER, AND RECOMMENDATIONS 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The Clerk of Court is directed to randomly assign a District Judge to this action; 11 2. The Court’s order granting Plaintiff’s motion to proceed in forma pauperis is 12 VACATED and the Director of the California Department of Corrections and 13 Rehabilitation is no longer required to collect payments pursuant to that order; and 14 3. The Clerk of Court is directed to serve copies of this order on the Director of the 15 California Department of Corrections and Rehabilitation via the Court’s electronic 16 case filing system (CM/ECF) and on the Financial Department, U.S. District 17 Court, Eastern District of California, Sacramento Division. 18 Furthermore, IT IS HEREBY RECOMMENDED that: 19 1. This action be dismissed as duplicative of Thomas K. Mills v. I.Z. Jones, et al., 20 Case No. 1:21-cv-01193-HBK; 21 2. Plaintiff’s motion to appoint counsel (ECF No. 3) and motion to stay (ECF No. 4) 22 be denied as moot; and 23 3. The Clerk of Court be directed to close the case. 24 These findings and recommendations are submitted to the assigned United States District 25 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B). Within fourteen (14) days 26 after service of the findings and recommendations, Plaintiff may file written objections with the 27 Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendation.” The assigned United States District Court Judge will then review the 1 | Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Plaintiff is advised that failure to 2 | file objections within the specified time may waive the right to appeal the District Court’s order. 3 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 4 1391, 1394 (9th Cir. 1991)). [5] 6 IT IS SO ORDERED. 7 Dated: _ September 3, 2021 [spe ey — 8 UNITED STATES MAGISTRATE JUDGE