(PC) Dijkstra v. Campos Garcia ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CODY DIJKSTRA, Case No. 1:22-cv-00310-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 v. RECOMMENDING THAT THIS ACTION BE DISMISSED WITHOUT PREJUDICE 14 I. CAMPOS GARCIA, AND THAT PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS BE 15 Defendant. DENIED AS MOOT 16 (ECF No. 2) 17 OBJECTIONS, IF ANY, DUE WITHIN 18 FOURTEEN DAYS 19 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 20 21 22 Cody Dijkstra (“Plaintiff”) is a state prisoner proceeding pro se in this in this civil rights 23 action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action 24 on March 17, 2022. (ECF No. 1). As it appeared that on August 12, 2021, Plaintiff filed a 25 complaint against the same defendant based on identical allegations in Dijkstra v. Campos, 26 E.D. CA, Case No. 1:21-cv-01223 (ECF No. 1), the Court ordered Plaintiff to show cause why 27 this case should not be dismissed as duplicative of Case No. 1:21-cv-01223. 28 On April 1, 2022, Plaintiff filed his response. (ECF No. 8). Plaintiff states that he was 1 under the impression that he had to re-file Case No. 1:21-cv-01223. Plaintiff states that, if Case 2 No. 1:21-cv-01223 is still active, Plaintiff wants this case to be dismissed. Plaintiff also states 3 that he wants to increase the amount of money he demanded to 1.1 million dollars. 4 Case No. 1:21-cv-01223 is still active. Plaintiff filed a First Amended Complaint in that 5 case (ECF No. 14), and that complaint is awaiting screening. As Plaintiff filed this case based 6 on the mistaken belief that he was supposed to re-file his complaint, the Court will recommend 7 that this case be dismissed without prejudice and that Plaintiff’s application to proceed in forma 8 pauperis be denied. 9 The Court notes that if Plaintiff wants to amend the complaint that he filed in Case No. 10 1:21-cv-01223, he needs to file a motion for leave to amend in that case, along with a copy of 11 the proposed amended complaint. As this case was filed in error, it is not the appropriate case 12 to make such a request. 13 Accordingly, the Court HEREBY RECOMMENDS that: 14 1. This action be dismissed without prejudice; 15 2. Plaintiff’s application to proceed in forma pauperis be denied as moot; and 16 3. The Clerk of Court be directed to close this case. 17 These findings and recommendations will be submitted to the United States district 18 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 19 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 20 file written objections with the Court. The document should be captioned “Objections to 21 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 22 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 23 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 24 (9th Cir. 1991)). 25 \\\ 26 \\\ 27 \\\ 28 \\\ enn ene SIE II OSI IIE IIE ED 1 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 2 || Judge to this case. 3 IT IS SO ORDERED. > ll Dated: _ April 6, 2022 hey 6 UNITED STATES MAGISTRATE JUDGE 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28