Morales v. Dr. Agustin ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 YOANDY F MORALES, Case No. 2:21-cv-01634-GMN-VCF 4 Plaintiff, SCREENING ORDER v. 5 DR. AGUSTIN, et al., 6 Defendants. 7 8 Plaintiff, who is incarcerated in the custody of the Nevada Department of 9 Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 10 and has filed two applications to proceed in forma pauperis. (ECF Nos. 1, 5.) Plaintiff 11 has also filed a motion for a docket sheet and a document titled “request for judicial 12 notice.” (ECF Nos. 4, 6.) Court now screens Plaintiff’s civil rights complaint under 28 13 U.S.C. § 1915A and addresses Plaintiff’s motions. 14 I. SCREENING STANDARD 15 Federal courts must conduct a preliminary screening in any case in which a 16 prisoner seeks redress from a governmental entity or officer or employee of a 17 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 18 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 19 upon which relief may be granted or seek monetary relief from a defendant who is immune 20 from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be 21 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 22 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 23 (1) the violation of a right secured by the Constitution or laws of the United States, and 24 (2) that the alleged violation was committed by a person acting under color of state law. 25 See West v. Atkins, 487 U.S. 42, 48 (1988). 26 In addition to the screening requirements under § 1915A, pursuant to the Prison 27 Litigation Reform Act (PLRA), a federal court must dismiss a prisoner’s claim, if “the 1 claim on which relief may be granted, or seeks monetary relief against a defendant who 2 is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure 3 to state a claim upon which relief can be granted is provided for in Federal Rule of Civil 4 Procedure 12(b)(6), and the court applies the same standard under § 1915 when 5 reviewing the adequacy of a complaint or an amended complaint. When a court 6 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 7 complaint with directions as to curing its deficiencies, unless it is clear from the face of 8 the complaint that the deficiencies could not be cured by amendment. See Cato v. United 9 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 10 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 11 Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure 12 to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 13 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 14 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all 15 allegations of material fact stated in the complaint, and the court construes them in the 16 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 17 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 18 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 19 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 20 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 21 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 22 insufficient. Id. 23 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 24 that, because they are no more than mere conclusions, are not entitled to the assumption 25 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can 26 provide the framework of a complaint, they must be supported with factual allegations.” 27 Id. “When there are well-pleaded factual allegations, a court should assume their veracity 1 “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 2 specific task that requires the reviewing court to draw on its judicial experience and 3 common sense.” Id. 4 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed 5 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This 6 includes claims based on legal conclusions that are untenable (e.g., claims against 7 defendants who are immune from suit or claims of infringement of a legal interest which 8 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 9 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); 10 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 11 II. SCREENING OF COMPLAINT 12 On July 13, 2021, Plaintiff initiated a case with Case No. 2:21-cv-01319-GMN-NJK 13 (“First Case”). On September 3, 2021, Plaintiff initiated this case. The complaints in both 14 cases are the same and appear to be exact copies.1 The only difference between the 15 complaints is that the complaint in this case lists Justin Reyes as a Defendant. However, 16 the body of each complaint is identical, and neither complaint includes any allegations 17 about Justin Reyes. 18 Duplicative litigation by a plaintiff proceeding in forma pauperis may be dismissed 19 as malicious under 28 U.S.C. § 1915(e). See Cato v. United States, 70 F.3d 1103, 1105 20 n.2 (9th Cir. 1995) (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988) (holding 21 that repetitious litigation of virtually identical causes of action is subject to dismissal as 22 malicious)); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir.1993) (holding that it is 23 malicious for a “pauper” to file a lawsuit that duplicates allegations of another pending 24 federal lawsuit by the same plaintiff). District courts have the inherent power to control 25 their dockets and “[i]n the exercise of that power, they may impose sanctions including, 26 /// 27 1 Compare Case No. 2:21-cv-01319-GMN-NJK (ECF No. 1-1), with Case No. 2:21- 1 where appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City of Los 2 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 3 It is not clear whether Plaintiff intended to initiate a new case or was attempting to 4 file an amended complaint in his previous case. As the Court will discuss in greater detail 5 in addressing Plaintiff’s motions, it appears that he has gotten confused keeping track of 6 multiple cases. As such, it appears that opening this duplicative action may have been 7 inadvertent. Plaintiff will have the opportunity to pursue his claims in the First Case, and 8 the Court dismisses this later filed case as duplicative and close this case. To the extent 9 that Plaintiff wishes to file an amended complaint pursuing claims against Justin Reyes, 10 he should file any amended complaint in his previous action. 11 III. PLAINTIFF’S MOTIONS 12 On October 18, 2021, Plaintiff filed a motion for a docket sheet. (ECF No. 4.) In 13 the motion, Plaintiff indicates that he initiated this case on January 22, 2021, and that he 14 wishes to see whether anything has occurred in this case since that date. However, this 15 case was filed on September 3, 2021. 16 On November 10, 2021, Plaintiff filed a request for judicial notice. (ECF No. 6.) In 17 this motion, Plaintiff states that he received the Court’s Order dated September 24, 2021, 18 in which the Court dismissed the complaint without prejudice and with leave to amend by 19 November 23, 2021. Plaintiff states that he does not wish to continue to pursue the case. 20 No such order was filed in this case. However, the Court notes that on October 25, 2021, 21 a screening order was issued dismissing Plaintiff’s complaint in Case No. 2:21-cv-00121- 22 JAD-VCF without prejudice and with leave to amend by November 26, 2021. That case 23 was filed on January 19, 2021. 24 Although the dates do not match exactly, it appears that both Plaintiff’s motion for 25 a docket sheet and his request for judicial notice refer to Case No. 2:21-cv-00121-JAD- 26 VCF. Because the motions do not appear to apply to this case, the Court denies both 27 motions. If Plaintiff wishes to pursue his motion for a docket sheet and his request for 1 IV. CONCLUSION 2 For the foregoing reasons, it is ordered that the Clerk of the Court file Plaintiff’s 3 complaint (ECF No. 1-1) and send Plaintiff a courtesy copy of the complaint. 4 It is further ordered that Plaintiff’s complaint is dismissed in its entirety as 5 duplicative of the complaint filed at Case No. 2:21-cv-01319-GMN-NJK. Plaintiff must 6 pursue his claims in that case. 7 It is further ordered that Plaintiff’s applications to proceed in forma pauperis (ECF 8 Nos. 1, 5) are denied as moot. 9 It is further ordered that Plaintiff’s motion for a docket sheet (ECF No. 4), and his 10 request for judicial notice (ECF No. 6) are denied. 11 It is further ordered that the Clerk of Court is directed to enter judgment accordingly 12 and close this case. 13 December DATED THIS _1__day of November 2021. 14 12/1/21 15 Gloria M. Navarro, Judge 16 United States District Court 17 18 19 20 21 22 23 24 25 26 27