Carrillo v. Swann ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 REFUGIO CARRILLO, Case No. 1:20-cv-00783-NONE-BAM 12 Plaintiff, ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS 13 v. FINDINGS AND RECOMMENDATIONS TO 14 HOPE L. SWANN, et al, DISMISS ACTION AS DUPLICATIVE 15 Defendants. (Doc. Nos. 1, 3) 16 FOURTEEN (14) DAY DEADLINE 17 18 Plaintiff Refugio Carrillo (“Plaintiff”), proceeding pro se, filed this civil action on June 5, 19 2020. (Doc. No. 1.) Concurrent with his complaint, filed an application to proceed without 20 payment of fees. (Doc. No. 3.) Currently before the Court is Plaintiff’s application, along with 21 his complaint for screening. 22 I. Application to Proceed In Forma Pauperis 23 Plaintiff has requested leave to proceed in forma pauperis pursuant to Title 28 of the United 24 States Code section 1915(a). Plaintiff has made the showing required by section 1915(a), and 25 accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a). 26 II. Screening Requirement and Standard 27 The Court screens complaints brought by persons proceeding pro se and in forma 28 pauperis. 28 U.S.C. § 1915(e)(2). Plaintiff’s complaint, or any portion thereof, is subject to 1 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 2 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 3 U.S.C. § 1915(e)(2)(B)(ii). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief . . ..” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 9 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 10 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 11 To survive screening, Plaintiffs’ claims must be facially plausible, which requires 12 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 13 for the misconduct alleged. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 14 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere 15 consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; 16 Moss, 572 F.3d at 969. 17 III. Plaintiff’s Allegations 18 Plaintiff brings this action against the following defendants: (1) Department of Justice, 19 Civil Division Torts Branch, James G. Toughey, Jr., Director of Tort Claims; (2) Hope L. Swann, 20 Paralegal Specialist; (3) Marth Hirschfield, Attorney Advisor for the Office of the Inspector 21 General; (4) Cecilia Besse, Acting Deputy General Counsel; and (5) Brent McIntosh, General 22 Counsel for the United States Department of the Treasury. Plaintiff alleges violations of the right 23 to due process, the Ninth Amendment, and the Fourteenth Amendment reportedly due to the 24 denial of an administrative claim submitted under the Federal Tort Claims Act (“FTCA”). He 25 seeks eleven trillion dollars for being kidnapped twice by the Department of Justice (“DOJ”) and 26 for a trademark belonging to him. Plaintiff also seeks a stop and desist order for harassment and 27 stalking by the DOJ. 28 Plaintiff submitted several attachments with his complaint. These attachments include: 1 (1) December 10, 2018 letter from Hope L. Swann Re: Submission of Refugio Carrillo, which 2 denied Plaintiff’s administrative claim because it lacked a sum certain rendering it invalid (Doc. 3 No. 1 at 10.); (2) April 2, 2019 letter from Hope L. Swann Re: Administrative Tort Claim for 4 Refugio Carrillo, which denied Plaintiff’s administrative tort claim because it was unsigned 5 rendering it invalid (Id. at 38); (3) December 18, 2019 Administrative Claim Recommendation: 6 Absurd, which found Plaintiff’s administrative tort claim “absurd and nonsensical” (Id. at 9); (4) 7 January 6, 2020 letter from James Touhey, Jr. Re: Administrative Tort Claim of Refugio Carrillo, 8 which notified Plaintiff that DOJ had reviewed and denied Plaintiff’s administrative tort claim. 9 (Id. at 8.) Plaintiff’s complaint also references a Statement of Claim, which details events 10 spanning the period from 1994 through January 2020 with additional exhibits. (Id. at pp. 11-37.) 11 IV. Carrillo v. Department of Justice, et al., No. 1:20-cv-00762-AWI-SAB 12 On June 2, 2020, Plaintiff filed Carrillo v. Department of Justice, et al., No. 1:20-cv- 13 00762-AWI-SAB (hereinafter “Carrillo I”).1 The complaint in Carrillo I is virtually identical to 14 the complaint filed in the instant action, including in parties, claims, factual allegations, length 15 and attachments. (See Carrillo I, Doc. No. 1.) The only difference that the Court can identify is 16 a handwritten notation on the first page of the complaint in the instant action stating, “In the 17 United States District Court, Bakersfield federal Court House 510 19th St Bakersfield CA 18 93301.” (Doc. 1 at 1.) This notation is not material. 19 In Carrillo I, the assigned magistrate judge issued findings and recommendations to 20 dismiss the complaint for failure to state a claim on June 5, 2020. (See Carrillo I, Doc. No. 4.) 21 The findings and recommendations were submitted to the assigned district judge and Plaintiff was 22 advised that any objections were to be filed within thirty days following service of the 23 recommendation. (Id.) Plaintiff filed objections on June 19, 2020. (See Carrillo I, Doc. No. 5.) 24 V. Discussion 25 Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to 26 dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United 27 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 28 1 The Court takes judicial notice of the files in that case. Fed. R. Evid. 201. 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). A complaint that merely repeats pending or previously litigated 3 claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d at 1105 n.2; 4 Bailey, 846 F.2d at 1021. “Dismissal of the duplicative lawsuit, more so than the issuance of a 5 stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive 6 disposition of litigation.” Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 692–93 (9th Cir. 7 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 8 “[I]n assessing whether the second action is duplicative of the first, we examine whether 9 the causes of action and relief sought, as well as the parties or privies to the action, are the same.” 10 Adams, 487 F.3d at 689 (citations omitted). “Plaintiffs generally have no right to maintain two 11 separate actions involving the same subject matter at the same time in the same court and against 12 the same defendant.” Id. at 688 (internal quotations and citations omitted). 13 As discussed above, the complaint in Carrillo I is identical in all material respects to the 14 complaint filed in the instant case. The documents are identical with the exception of a single 15 handwritten notation identifying the Bakersfield Division of the Eastern District of California. In 16 both cases, Plaintiff raises the same claims, arising out of the same events, involving the same 17 parties, and infringing upon the same rights. Therefore, the Court finds that this case should be 18 dismissed because it is duplicative of Carrillo I, his earlier filed, currently pending case. 19 VI. Conclusion and Recommendation 20 Based on the foregoing, the Court HEREBY RECOMMENDS that this action be 21 dismissed as duplicative. 22 These Findings and Recommendation will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 24 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 25 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 27 specified time may result in the waiver of the “right to challenge the magistrate’s factual 28 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 1 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 IT IS SO ORDERED. 3 4 Dated: June 29, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28