Salmen v. Hodges ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SALMEN, Case No.: 3:21-cv-0966-JLS-DEB CDCR #BK-5881, 12 ORDER (1) DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT TO 28 U.S.C. vs. § 1915A(b)(1) AND (2) DENYING 14 MOTION TO PROCEED IN FORMA J. HODGES, Chief Physician, 15 PAUPERIS AS MOOT Defendant. 16 (ECF No. 2) 17 18 19 20 Plaintiff Justin Salmen, currently incarcerated at the Richard J. Donovan 21 Correctional Facility (“RJD”) located in San Diego, California, and proceeding pro se, has 22 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. 23 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he filed 24 his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 25 to 28 U.S.C. § 1915(a) (ECF No. 2). 26 I. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b) 27 The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, obligates the 28 Court to review complaints filed by anyone “incarcerated or detained in any facility who 1 is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 2 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 3 soon as practicable after docketing” and regardless of whether the prisoner prepays filing 4 fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). Pursuant to this provision 5 of the PLRA, the Court is required to review prisoner complaints which “seek[] redress 6 from a governmental entity or officer or employee of a government entity,” and to dismiss 7 those, or any portion of those, which are “frivolous, malicious, or fail[] to state a claim 8 upon which relief may be granted,” or which “seek monetary relief from a defendant who 9 is immune.” 28 U.S.C. § 1915A(b)(1)–(2); Resnick v. Hayes, 213 F.3d 443, 446–47 (9th 10 Cir. 2000); Hamilton v. Brown, 630 F.3d 889, 892 n.3 (9th Cir. 2011). “The purpose of 11 § 1915A is ‘to ensure that the targets of frivolous or malicious suits need not bear the 12 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 13 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 14 Plaintiff’s Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. 15 § 1915A(b)(1) because it is duplicative of another civil action he filed in this Court last 16 year. See Salmen v. CDCR., et al., S.D. Cal. Civil Case No. 3:20-cv-02088-GPC-KSC 17 (“Salmen I”). A court “‘may take notice of proceedings in other courts, both within and 18 without the federal judicial system, if those proceedings have a direct relation to matters at 19 issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. 20 Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 21 In Salmen I, Plaintiff identified J. Hodges, an RJD physician, as a Defendant and 22 claimed that on May 22, 2020, Hodges “intercepted with [Plaintiff’s] request to speak with 23 his or her supervisor” and as a result, Plaintiff’s “request [was] silenced.” See Salmen I, 24 Amended Compl., ECF No. 7 at 3. 25 On November 23, 2020, Judge Curiel dismissed portions of Plaintiff’s Amended 26 Complaint in Salmen I pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), including all 27 of his claims against Defendant Hodges, but determined Plaintiff’s remaining claims were 28 sufficient to survive sua sponte screening. See Salmen I, ECF No. 8 at 4–8. A summons 1 was issued, and Judge Curiel directed the U.S. Marshal to effect service upon Defendant 2 Chau on Salmen’s behalf pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). Id. 3 at 7–9. 4 In the Complaint filed in this matter, Plaintiff realleges, as he did in Salmen I, that 5 on May 22, 2020, Defendant Hodges “intercepted [his] request to speak with the Healthcare 6 Captain.” Compl. at 4. 7 As pleaded, the Court finds Plaintiff’s claims in this case are duplicative of those 8 previously alleged and dismissed in Salmen I. A prisoner’s complaint is considered 9 frivolous under 28 U.S.C. § 1915A(b)(1) if it “merely repeats pending or previously 10 litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing 11 former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Because Plaintiff 12 has already brought and had dismissed the same claims as those presented in the instant 13 action against the same defendant in Salmen I, dismissal of this duplicative and 14 subsequently filed civil case pursuant to 28 U.S.C. § 1915A(b)(1) is warranted. See Cato, 15 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 n.1; see also Adams v. Cal. Dep’t of Health 16 Servs., 487 F.3d 684, 688–89 (9th Cir. 2007) (“[I]n assessing whether the second action is 17 duplicative of the first, we examine whether the causes of action and relief sought, as well 18 as the parties or privies to the action, are the same.”), overruled on other grounds by Taylor 19 v. Sturgell, 553 U.S. 880, 904 (2008). 20 II. Conclusion and Order 21 Good cause appearing, the Court: 22 (1) DISMISSES this civil action as frivolous pursuant to 28 U.S.C. 23 § 1915A(b)(1). 24 (2) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as moot. 25 (3) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 26 28 U.S.C. § 1915(a)(3); and 27 /// 28 /// 1 (4) DIRECTS the Clerk of the Court to enter a judgment of dismissal and to close 2 || the file. 3 IT IS SO ORDERED. 4 ||Dated: May 24, 2021 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 oe