(HC) Miller v. Atascadero State Hospital ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN S. MILLER Case No. 1:20-cv-00424-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 ATASCADERO STATE HOSPITAL, REGARDING DUPLICATIVE PETITION 15 Respondent. (FOURTEEN-DAY DEADLINE) 16 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 18 § 2254. 19 On March 23, 2020, Petitioner filed the instant petition for writ of habeas corpus in this 20 Court. Petitioner challenges his current sentence of 27 years as ordered by the Orange County 21 Superior Court in 2008. It has come to the Court’s attention that Petitioner is already proceeding 22 with a petition challenging his current sentence in Miller v. Warden of Valley State Prison, Case 23 No. 1:19-cv-1915-JDP (HC). In that case, Petitioner filed a First Amended Petition on March 12, 24 2020, and the matter is currently awaiting a response from Respondent. 25 “After weighing the equities of the case, the district court may exercise its discretion to 26 dismiss a duplicative later-filed action, to stay that action pending resolution of the previously filed 27 action, to enjoin the parties from proceeding with it, or to consolidate both actions.” Adams v. 1 ‘no right to maintain two separate actions involving the same subject matter at the same time in 2 the same court and against the same defendant.’” Adams, 487 F.3d at 688 (quoting Walton v. Eaton 3 Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en banc)). 4 In assessing whether a second action is duplicative of the first, the court examines whether 5 the causes of action and relief sought, as well as the parties or privies to the action, are the same. 6 Adams, 487 F.3d at 689. First, the court must examine whether the causes of action in the two 7 suits are identical pursuant to the transaction test, developed in the context of claim preclusion. 8 Id. Second, the court determines whether the defendants are the same or in privity. Privity 9 includes an array of relationships which fit under the title of “virtual representation.” Kourtis v. 10 Cameron, 419 F.3d 989, 996 (9th Cir. 2005). “The necessary elements of virtual representation 11 are an identity of interests and adequate representation.” Adams, 487 F.3d at 691 (citing Kourtis, 12 419 F.3d at 996). “Additional features of a virtual representation relationship include a close 13 relationship, substantial participation, and tactical maneuvering.” Adams, 487 F.3d at 691 14 (quoting Kourtis, 419 F.3d at 996). 15 A plaintiff is required to bring at one time all of the claims against a party or privies relating 16 to the same transaction or event. Adams, 487 F.3d at 693. The court has discretion to dismiss a 17 duplicative complaint with prejudice to prevent a plaintiff from “fragmenting a single cause of 18 action and litigating piecemeal the issues which could have been resolved in one action.” Adams, 19 487 F.3d at 694 (quoting Flynn v. State Bd. of Chiropractic Exam'rs, 418 F.2d 668, 668 (9th 20 Cir.1969) (per curiam)). 21 Normally, “where a new pro se petition is filed before the adjudication of a prior petition 22 is complete, the new petition should be construed as a motion to amend the pending petition rather 23 than as a successive application.” Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir. 2008). 24 However, in this case, the newly-filed petition was signed and dated on January 26, 2020, whereas 25 the First Amended Petition was signed and dated on March 2, 2020. It is unclear why the January 26 petition was submitted and filed after the March petition, but it appears the petition was either 27 delayed or submitted in error and is not an attempt to amend. Therefore, the Court finds that the 1 ORDER 2 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District Judge 3 to this case. 4 RECOMMENDATION 5 For the foregoing reasons, the Court RECOMMENDS that the Petition for Writ of Habeas 6 Corpus be DISMISSED as duplicative. 7 This Findings and Recommendation is submitted to the assigned District Judge, pursuant 8 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the 9 United States District Court, Eastern District of California. Within fourteen (14) days after being 10 served with a copy, Petitioner may file written objections with the Court. Such a document should 11 be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will 12 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is 13 advised that failure to file objections within the specified time may waive the right to appeal the 14 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. 17 Sheila K. Oberto 18 Dated: March 25, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27