1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 RUDOLPH H. MORALEZ, 10 Case No. 21-01779 BLF (PR) Plaintiff, 11 ORDER OF DISMISSAL v. 12 13 RON DAVIS, et al., 14 Defendants. 15

16 17 Plaintiff, a state prisoner at San Quentin State Prison (“SQSP”), filed the instant pro 18 se civil rights action pursuant to

, against Warden Ron Davis and several 19 prison officers.1 Dkt. No. 1. Plaintiff’s motion for leave to proceed in forma pauperis will 20 be granted in a separate order. Dkt. No. 2. 21 22 DISCUSSION 23 A. Standard of Review 24 A federal court must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 5 To state a claim under

, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins,

(1988). 9 B. Plaintiff’s Claims 10 Plaintiff claims various deficiencies with respect to prison conditions during the 11 pandemic. Dkt. No. 1 at 2. He makes general allegations that he has been deprived of 12 adequate medical care, failure to keep medical records, and poor staff training and 13 supervision. Id. at 3. He also claims lack of “quality control process” and a “failure to 14 vacate or modify population reduction.” Id. He also alludes to the American With 15 Disabilities Act (“ADA”) and the failure of the CDCR to provide facemasks, resulting in 16 his contracting the coronavirus. Id. He seeks damages. Id. 17 Plaintiff filed a previous action in this district against the same Defendants claiming 18 they failed to distribute masks and that he contracted the virus. The previous action, 19 Moralez v. Davis, et al., Case No. 20-07860 RMI (“Moralez I”), was twice dismissed with 20 leave to amend. Id., Dkt. Nos. 10, 13. Plaintiff initially sought relief under the ADA, but 21 the allegations were insufficient to support such a claim. Dkt. No. 10 at 3. The Court 22 granted Plaintiff leave to amend to attempt to state an Eighth Amendment deliberate 23 indifference claim instead, with instructions to identify specific individuals and events and 24 describe how each violated his rights under the Eighth Amendment. Id. at 3-4. After 25 Plaintiff filed an amended complaint, the Court dismissed it a second time with leave to 26 amend because he failed to follow the Court’s instructions. Dkt. No. 13 at 3. Plaintiff 1 || inadequacies of the prison’s medical care system. /d. Plaintiff also failed to even mention 2 || the Coronavirus or the lack of masks. Jd. 3 Duplicative or repetitious litigation of virtually identical causes of action is subject 4 || to dismissal under

as malicious. Bailey v. Johnson,

, 1021 5 || (Sth Cir. 1988). An in forma pauperis complaint that merely repeats pending or previously 6 || litigated claims may be considered abusive and dismissed under § 1915. Cato v. United 7 || States,

, 1105 n.2 (9th Cir. 1995); Bailey,

. An in forma 8 || pauperis complaint repeating the same factual allegations asserted in an earlier case, even g || □□ □□□ filed against new defendants, therefore is subject to dismissal as duplicative. 10 || Bailey,

; Van Meter v. Morgan,

(8th Cir. 1975). 11 || “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment 2 of proceedings, promotes judicial economy and the “comprehensive disposition of E 13 || litigation.” Adams v. California,

, 692-93 (9th Cir. 2007) (citation omitted), S 14 || overruled on other grounds by Taylor v. Sturgell,

(2008). Here, 3 15 || Plaintiffs underlying case is duplicative of Moralez I because the two suits arise out of the 16 || same transactional nucleus of facts, i.e., the prison’s allegedly inadequate response to the 5 17 || pandemic and resulting injuries, and defendants in both cases are parties or privies to the 5 18 action. See Adams, 487 F.3d at 689. As this case is duplicative of Moralez I, which 1s 19 || currently pending, the instant action will be dismissed. 20 21 CONCLUSION 22 For the foregoing reasons, the complaint is DISMISSED as duplicative. The Clerk 23 || shall terminate all pending motions and close the file. 24 IT ISSO ORDERED. 25 || Dated: __ April 16, 2021 hod Ly ham! BETH LABSON F REEMAN United States District Judge 27 PRO-SE\BLICR 21\001779Moralez, disnn(dup)