(PC) Johnson v. Wilson ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP JOSEPH JOHNSON, Case No. 1:23-cv-00623-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 v. RECOMMENDING THAT THIS ACTION BE DISMISSED, WITHOUT PREJUDICE, 14 RANDOLPH WILSON, et al., AS DUPLICATIVE OF CASE 1:23-CV- 00580 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 ORDER DIRECTING CLERK TO ASSIGN 18 DISTRICT JUDGE 19 Phillip Johnson (“Plaintiff”) is a state prisoner proceeding pro se in this in this civil 20 rights action. Prior to filing this action, Plaintiff filed Johnson v. Wilson, E.D. CA, Case No. 21 1:23-cv-00580 (“Wilson I”). As this prior case appears to include the same claims and 22 defendants as this action, the Court will recommend that this action be dismissed, without 23 prejudice, as duplicative of Wilson I. 24 “Plaintiffs generally have ‘no right to maintain two separate actions involving the same 25 subject matter at the same time in the same court and against the same defendant.’” Adams v. 26 California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton 27 Corp., 563 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by Taylor v. Sturgell, 553 28 U.S. 880, 904 (2008). 1 “To determine whether a suit is duplicative, we borrow from the test for claim 2 preclusion.” Adams, 497 F.3d at 688. “‘[T]he true test of the sufficiency of a plea of ‘other 3 suit pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, 4 as ‘the thing adjudged,’ regarding the matters at issue in the second suit.’” Id. (second 5 alteration in original) (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). “Thus, in 6 assessing whether the second action is duplicative of the first, we examine whether the causes 7 of action and relief sought, as well as the parties … to the action, are the same.” Adams, 497 8 F.3d at 689. See also Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993) (“[A] 9 suit is duplicative if the claims, parties, and available relief do not significantly differ between 10 the two actions.”) (citation and internal quotation marks omitted). 11 “After weighing the equities of the case, the district court may exercise its discretion to 12 dismiss a duplicative later-filed action, to stay that action pending resolution of the previously 13 filed action, to enjoin the parties from proceeding with it, or to consolidate both actions.” 14 Adams, 497 F.3d at 688. 15 On March 23, 2023, Plaintiff filed the complaint commencing Wilson I. Wilson I, ECF 16 No. 1. On April 18, 2023, Plaintiff filed the complaint commencing this action. The Court has 17 reviewed both complaints, and they appear to be largely (if not entirely) identical. Plaintiff 18 brings the same four claims (based on medical care, excessive force by an officer, retaliation, 19 and the Americans with Disabilities Act) against the same twenty-six defendants.1 20 As in this case Plaintiff appears to be bringing the same claims against the same 21 defendants as Plaintiff brought in Wilson I, and as Wilson I was filed prior to this case, the 22 Court will recommend that this action be dismissed as duplicative of Wilson I.2 23 Accordingly, it is HEREBY RECOMMENDED that 24 1. This action be dismissed, without prejudice, as duplicative of Johnson v. 25 26 1 In this case, Plaintiff’s fourth claim, which is labeled claim three, is largely illegible. (ECF No. 1, p. 10). However, in both cases it is labeled an “ADA Claim,” and in both cases it is erroneously labeled “Claim III,” 27 compare Wilson I, ECF No. 1, p. 10 with ECF No. 1, p. 10. Moreover, from what the Court can discern, the allegations in this claim are identical. Id. 28 2 The Court notes that this dismissal would be without prejudice to Plaintiff continuing to litigate the claims in Wilson I. 1 Wilson, E.D. CA, Case No. 1:23-cv-00580; 2 2. Plaintiffs application to proceed in forma pauperis (ECF No. 2) be denied as 3 moot; 4 3. Plaintiff's motion for appointment of pro bono counsel (ECF No. 3) be denied as 5 moot; and 6 4. The Clerk of Court be directed to close this case. 7 These findings and recommendations will be submitted to the United States district 8 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 9 || fourteen (14) days after being served with these findings and recommendations, Plaintiff may 10 || file written objections with the Court. The document should be captioned “Objections to 11 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 12 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 13 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 14 |} (9th Cir. 1991)). 15 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 16 || judge to this case. 17 13 IT IS SO ORDERED. ‘9 ll Dated: _ April 25, 2023 □□□ hey 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28