(PS)Osborne v. Calvache

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MICHELLE OSBORNE, Case No. 2:20-cv-02341-KJM-JDP (PS) 12 Plaintiff, ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 13 v. ECF No. 2 JOSE CLAVACHE, et al., ORDER TO SHOW CAUSE WHY THIS 15 Defendants. CASE SHOULD NOT BE DISMISSED AS DUPLICATIVE OF CASE 2:20-cv-01805- 16 JAM-KJN 18 Plaintiff proceeds without counsel in this civil rights action brought under 42 U.S.C. § 1983. She seeks leave to proceed without prepayment of filing fees, ECF No. 2. Plaintiff’s affidavit satisfies the requirements to proceed without prepayment of fees. See 28 U.S.C. § 1915(a). The motion, ECF No. 2, is therefore granted.

22 Having granted plaintiff’s motion to proceed in forma pauperis, this complaint is now subject to screening under 28 U.S.C. § 1915(e). It appears that this case is duplicative of a closed case in this district. Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 27 573, 574 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. 28 Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). “Plaintiffs generally have ‘no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.’” Adams v. California Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977)), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).

5 “To determine whether a suit is duplicative, we borrow from the test for claim preclusion.” Adams, 497 F.3d at 688. “‘[T]he true test of the sufficiency of a plea of ‘other suit pending’ in another forum [i]s the legal efficacy of the first suit, when finally disposed of, as ‘the thing adjudged,’ regarding the matters at issue in the second suit.’” Id. (quoting The Haytian Republic, 154 U.S. 118, 124 (1894)). “Thus, in assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties . . .

11 to the action, are the same.” Adams, 497 F.3d at 689. See also Serlin v. Arthur Anderson & Co., 3 F.3d 221, 223 (7th Cir. 1993) (internal quotation marks and citation omitted) (“[A] suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions.”).

15 On September 8, 2020, defendants removed case number 2:20-cv-01805-JAM-KJN from state court to federal court. On November 23, 2020, plaintiff filed this case. In the first case, as with this case, plaintiff sued several police officers and the police department regarding the police response to an incident of domestic violence and subsequent sexual assault at her residence. The allegations, claims, and defendants in both cases do not significantly differ.

20 Thus, it appears that this case is duplicative of Osborne v. Tracy Police Department, 2:20- cv-01805-JAM-KJN. Accordingly, it is hereby ordered that within thirty days from the date of service of this order, plaintiff must show cause why this case should not be dismissed as duplicative. If plaintiff does not wish to pursue this case, she may file a notice of dismissal. If plaintiff fails to file a response, I will recommend that this case be dismissed. > IT IS SO ORDERED.

3 ( | { Wine Dated: _ October 9, 2021 Q_—— 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE