(PC) Smith v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, Case No. 1:20-cv-00349-NONE-JDP 12 Plaintiff, ORDER FOR PLAINTIFF TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE 13 v. DISMISSED AS DUPLICATIVE OF CASE 1:19-cv-01358-NONE-BAM 14 SECRETARY RALPH DIAZ, et al., THIRTY-DAY DEADLINE 15 Defendants. 16 17 Plaintiff Lawrence Christopher Smith is a state prisoner proceeding without counsel in 18 this action. Plaintiff filed the complaint commencing this action on March 3, 2020. ECF No. 1. 19 The case was transferred to this district the same week, ECF No. 5, and plaintiff was ordered to 20 apply to proceed in forma pauperis or pay the filing fee, ECF No. 8. Plaintiff moved to proceed 21 in forma pauperis on March 30, 2020, ECF No. 12, and the court received his trust fund account 22 statement on April 1, 2020. As it appears that plaintiff filed a complaint against many of the 23 same defendants based on similar allegations in Smith v. Becerra, No. 1:19-cv-01358 at ECF No. 24 1, the court will order plaintiff to show cause why this case should not be dismissed as duplicative 25 before deciding the pending motion. 26 Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to 27 dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United 28 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 1 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994–95 (5th Cir. 1993); Bailey v. Johnson, 846 2 F.2d 1019, 1021 (5th Cir. 1988). “Plaintiffs generally have ‘no right to maintain two separate 3 actions involving the same subject matter at the same time in the same court and against the same 4 defendant.’” Adams v. California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) 5 (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by 6 Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 7 “To determine whether a suit is duplicative, we borrow from the test for claim 8 preclusion.” Adams, 497 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. (quoting The Haytian 11 Republic, 154 U.S. 118, 124 (1894)). “Thus, in assessing whether the second action is duplicative 12 of the first, we examine whether the causes of action and relief sought, as well as the parties . . . 13 to the action, are the same.” Adams, 497 F.3d at 689. See also Serlin v. Arthur Anderson & Co., 14 3 F.3d 221, 223 (7th Cir. 1993) (internal quotation marks and citation omitted) (“[A] suit is 15 duplicative if the claims, parties, and available relief do not significantly differ between the two 16 actions.”). 17 On February 14, 2019, plaintiff filed a complaint that was also transferred to the Eastern 18 District of California and which is proceeding in Smith v. Becerra, No. 1:19-cv-01358. That case 19 was unassigned from a district judge following the retirement of Chief Judge O’Neill on February 20 3, 2020. One month later, plaintiff filed the complaint commencing this action, attaching the 21 order unassigning the district judge.1 22 In both cases plaintiff provides a laundry list of allegations against dozens of defendants, 23 including retaliation in the form of physical abuse against him for filing previous lawsuits. See 24 ECF No. 1. In both cases, plaintiff seeks monetary damages. While the allegations and the list of 25 defendants are not identical, they do not appear to significantly differ. 26 27 1 Plaintiff’s case that was unassigned is still active. To the extent that plaintiff believed he needed to file a new complaint in response to the order unassigning the district judge, that was a 28 misinterpretation of the order. 1 Thus, it appears that this case is duplicative of Smith v. Becerra, No. 1:19-cv-01358. 2 | Accordingly, it is hereby ordered that within thirty days from the date of service of this order, 3 | plaintiff shall show cause why this case should not be dismissed as duplicative. If plaintiff does 4 | not wish to pursue this case, he may file a notice of dismissal. If plaintiff fails to file a response, 5 | we will recommend that this case be dismissed. 6 7 IT IS SO ORDERED. p : —N prssann — Dated: _ April 2, 2020 9 UNI STATES MAGISTRATE JUDGE 10 11 | No. 204. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28