(PC) Howard v. Aryad ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY EUGENE HOWARD, No. 2:20-cv-0081 TLN AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 DR. ARYAD, et al., 15 Defendants. 16 17 18 A letter from plaintiff was docketed in this prisoner civil rights action on June 24, 2021. 19 ECF No. 8. Based on its contents and timing, the court construes the letter as objections to the 20 findings and recommendations issued on June 10, 2021, ECF No. 7, as well as a request for the 21 appointment of counsel. 22 The previous recommendation for dismissal was based on plaintiff’s failure to pay the 23 filing fee or to file an application to proceed in forma pauperis. ECF No. 7. Plaintiff’s objection 24 letter states, in relevant part, that: (1) he is confused about the proceedings and his need to file an 25 in forma pauperis application; (2) he would like counsel to be appointed to help him understand 26 the proceeding; and (3) with the exception of one defendant, the instant action is identical to 27 Howard v. Aryad, No. 19-cv-2062 KJM CKD (“Howard I”). See ECF No. 8. 28 ] A comparison of the complaint in the instant action with the complaint in Howard I 2 || reveals that the two complaints are, in fact, virtually identical.! Compare ECF No. 1, with 3 || Howard I, ECF No. 1. A plaintiff generally has no right to maintain two separate actions 4 || involving the same subject matter at the same time in the same court and against the same 5 | defendants. See Adams v. California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), 6 | overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). Therefore, the 7 || undersigned will vacate its June 10, 2021 findings and recommendations, and plaintiffs request 8 | for the appointment of counsel (see ECF No. 8, § 3) will be denied as moot. In addition, the 9 || undersigned will recommend that this matter be dismissed as duplicative of Howard I. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The findings and recommendations issued June 10, 2021 (ECF No. 7), are 12 | VACATED, and 13 2. Plaintiffs request for the appointment of counsel (see ECF No. 8 at § 3) is 14 || DENIED as moot. 15 IT IS FURTHER RECOMMENDED that this action be DISMISSED as duplicative of 16 || Howard v. Aryad, No. 19-cv-2062 KJM CKD. 17 These findings and recommendations are submitted to the United States District Judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one 19 | days after being served with these findings and recommendations, plaintiff may file written 20 || objections with the court. Such a document should be captioned “Objections to Magistrate 21 || Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 22 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 23 | Yist, 951 F.2d 1153 (9th Cir. 1991). . . 24 || DATED: June 30, 2021 Chthtten— Lan—e_ 5 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 26 27 | | The court does not, and need not, make any finding with respect to the question of whether the first amended complaint subsequently filed in Howard I (see ECF No. 14) and the original 28 | complaint in this action also align in terms of claims and defendants.