(PC) Hill v. Kernan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH HILL, No. 2:19-cv-0448 MCE DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983. This action was originally filed in the Sacramento County Superior Court and 19 removed to this Court on March 13, 2019. Pending now is defendants’ motion to dismiss this case 20 as duplicative of Hill v. Kernan, 1:19-cv-0512-MCE-DB, a case filed in this court in the first 21 instance on April 11, 2019. (ECF No. 6.) Plaintiff has not responded to the defendants’ motion. 22 For the reasons set forth below, the Court will recommend that defendants’ motion to dismiss be 23 denied. 24 I. Plaintiff’s Cases 25 A. Hill v. Kernan, 1:19-cv-0512-MCE-DB 26 On November 18, 2019, plaintiff’s first amended complaint in Hill v. Kernan, 1:19-cv- 27 0512-MCE-DB, was screened. The gravamen of that pleading is that plaintiff was charged with 28 1 institutional violations on two separate occasions, with each charge presented to him through the 2 use of a printout from the Strategic Offender Management System (“SOMS”) instead of through 3 the issuance of a CCR Form 115 (a Rules Violation Report [“RVR”]). Plaintiff claims that the 4 institution’s use of the SOMS Disciplinary Module printout instead of the CDCR Form 115 5 violated his Eighth Amendment rights because the defendants acted with deliberate indifference 6 to his mental health. He further claims that the defendants violated the Administrative Procedures 7 Act (“APA”), 5 U.S.C. § 551 et seq. 8 On review, the Court determined that plaintiff failed to state a claim under the Eighth 9 Amendment because his allegations were too vague and conclusory and further found that 10 plaintiff was barred from proceeding pursuant to the APA because it was not intended to 11 encompass claims brought by prisoners with regard to changes in institutional regulations. 12 Plaintiff was granted leave to amend, and the Court is awaiting his second amended complaint. 13 B. Hill v. Kernan, 1:19-cv-0448-MCE-DB 14 In the present case, plaintiff’s allegations are based on the same incidents underlying Hill 15 v. Kernan, 1:19-cv-0512-MCE-DB. That is, plaintiff alleges that he was charged with institutional 16 violations on two separate occasions and that each charge improperly relied on a SOMS printout 17 instead of a CDCR Form 115. Based upon the same set of facts, plaintiff contends that his rights 18 under California’s version of the APA, Cal. Gov. Code §§ 11340.1 et seq., were violated. He also 19 claims that the defendants were negligent and that they violated his due process rights when they 20 failed to comply with institutional regulations at the hearings on the charges. 21 II. Discussion 22 In their cursory motion to dismiss, defendants argue because plaintiff’s two cases “name 23 the same Defendants, and allege the same claims and events,” this action should be dismissed. 24 Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to 25 dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United 26 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 27 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. Johnson, 846 28 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or 1 previously litigated claims may be considered abusive and dismissed under § 1915. Cato, 70 F.3d 2 at 1105 n.2; Bailey, 846 F.2d at 1021. Repeating the same factual allegations asserted in an earlier 3 case, even if now filed against new defendants, is subject to dismissal as duplicative. See, e.g., 4 Bailey, 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975). “Dismissal of 5 the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, 6 promotes judicial economy and the comprehensive disposition of litigation.” Adams v. California, 7 487 F.3d 684, 688, 692–94 (9th Cir. 2007). 8 Defendants’ motion to dismiss should be denied because the claims in the cases are not, in 9 fact, identical, even if the factual basis of the claims are. In Hill v. Kernan, 1:19-cv-0512-MCE- 10 DB, plaintiff brought claims under the Eighth Amendment and the federal APA. In contrast, 11 plaintiff’s claims in this case are premised on state law claims of negligence and violations of 12 California’s APA. His federal claim is a Fourteenth Amendment due process claim related to the 13 hearings on the charges asserted against him. Notably, defendants do not argue that the assertion 14 of different claims in different lawsuits premised on the same set of facts is improper. 15 In the alternative, defendants ask that the two actions be consolidated for all matters, 16 including pre-trial proceedings and trial. The Court finds this alternative request to be premature. 17 The cases have not yet moved beyond the screening stage. Without a viable claim yet in either 18 action, it is impossible to determine whether consolidation would be appropriate pursuant to 19 Federal Rule of Civil Procedure 42(a). 20 III. Conclusion 21 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss (ECF 22 No. 6) be DENIED without prejudice. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 25 fourteen days after being served with these Findings and Recommendations, the parties may file 26 written objections with the Court. The document should be captioned “Objections to Magistrate 27 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 28 1 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 2 | F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 | Dated: March 2, 2020 4 5 6 -BORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 | /DLB7 DB/Inbox/Priority/hill0448.mtd 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28