(PC) Muhammad v. Amaral ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANSAR EL MUHAMMAD, No. 2:20-cv-00069-KJM-CKD P 12 Plaintiff, 13 v. ORDER AND 14 KOURTNEE AMARAL, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this federal civil 18 rights action filed pursuant to 42 U.S.C. § 1983. On November 16, 2020, the previously assigned 19 magistrate judge issued Findings and Recommendations that this case be dismissed without 20 prejudice as duplicative of Muhammad v. Orr, Case No. 2:19-cv-1289-KJM-CKD (E.D. Cal.).1 21 Before those Findings and Recommendations could be reviewed by the district court judge, this 22 case was reassigned after it was determined that it involved “similar questions of fact and the 23 same question of law” as the Orr case. ECF No. 35 at 1 (citing Local Rule 123(a)(3)). Due to 24 this reassignment, it is necessary to vacate the previously issued Findings and Recommendations. 25 This case is proceeding on plaintiff’s amended complaint filed on August 10, 2020 26 alleging that defendant Amaral violated his Eighth Amendment right to adequate medical care by 27 28 1 Hereinafter referred to as the “Orr case.” 1 | failing to treat his broken hand in August 2018 while plaintiff was an inmate at Mule Creek State 2 | Prison. ECF No. 15. Plaintiff raised these same allegations against defendant Amaral in the Orr 3 | case. See ECF No. 16 in Muhammad v. Orr, Case No. 2:19-cv-1289-KJM-CKD (screening 4 | order). Because the Orr case was filed first, it appears to the court that the complaint in this civil 5 | action is entirely duplicative and should therefore be dismissed without prejudice. 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. The Findings and Recommendations issued on November 16, 2020 (ECF No. 34) are 8 hereby vacated. 9 2. The December 14, 2020 minute order scheduling a settlement conference in this case 10 (ECF No. 36) is also vacated as premature. 11 IT IS FURTHER RECOMMENDED that this matter be dismissed without prejudice as 12 | duplicative. See Fed. R. Civ. P. 41(b). 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 15 | after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be captioned 17 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 | objections shall be served and filed within fourteen days after service of the objections. The 19 | parties are advised that failure to file objections within the specified time may waive the right to 20 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: December 21, 2020 dp. A. fe 22 CAROLYN K. DELANEY : 23 UNITED STATES MAGISTRATE JUDGE 24 25 6 12/muha0069.F&R.duplicative.docx 27 28