(PC) Johnson v. Solano County Sheriff ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES L. JOHNSON, JR., Case No. 2:22-cv-02220-KJM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED AS 13 v. DUPLICATIVE 14 SOLANO COUNTY SHERIFF, et al., ECF No. 8 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding without counsel. Plaintiff filed a complaint 18 in Solano County Superior Court alleging that defendant officers Cynthia Hill, Marc Avecilla, 19 and Adrian Torres used excessive force against him at Solano County Jail. ECF No. 1. On 20 December 14, 2022, defendants timely removed this action to federal court. Id. A day later, they 21 filed a motion to dismiss. ECF No. 3. Plaintiff did not respond to defendants’ motion to dismiss. 22 Accordingly, on January 30, 2023, I ordered plaintiff to show cause for his failure to not timely 23 file an opposition. ECF No. 7. Plaintiff did not respond, and so on March 7, 2023, I 24 recommended that plaintiff’s complaint be dismissed for failure to prosecute, failure to comply 25 with court orders, and failure to comply with the court’s local rules. ECF No. 8. 26 I recently became aware that plaintiff has filed a complaint in this district that is nearly 27 identical to the complaint in this case. See Johnson v. Solano County Sheriff, 2:22-cv-2061- 28 DAD-CKD (PS) (E.D. Cal.). Because the complaint in this action is duplicative of the complaint 1 | plaintiffs other action, I will recommend that this action be dismissed. See Cato v. United 2 | States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (holding that a complaint that “merely repeats 3 | pending or previously litigated claims” may be dismissed as frivolous under the authority of 28 4 US.C. § 1915). 5 Accordingly, it is hereby ORDERED that the March 7, 2023 findings and 6 | recommendations, ECF No. 8, are vacated. 7 Further, it is RECOMMENDED that this action be dismissed as duplicative. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 | after being served with these findings and recommendations, any party may file written 11 | objections with the court and serve a copy on all parties. Such a document should be captioned 12 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 13 | objections shall be served and filed within fourteen days after service of the objections. The 14 | parties are advised that failure to file objections within the specified time may waive the right to 15 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 16 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 17 18 IT IS SO ORDERED. 19 ( q Sty — Dated: _ March 17, 2023 Q——— 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28