Jones v. Pollard

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HENRY A. JONES, Jr., Case No.: 3:21-cv-00187-AJB-WVG CDCR #P-69574,

ORDER:

Plaintiff,

vs. (1) DISMISSING CIVIL ACTION

AS DUPLICATIVE PURSUANT

TO 28 U.S.C. § 1915A(b)(1)

MARCUS POLLARD, Warden; KATHLEEN ALLISON, Director of the AND California Department of Corrections and Rehabilitation; JOHN DOES 1-6, (2) DENYING MOTION TO

Defendants. PROCEED IN FORMA PAUPERIS AS MOOT [ECF No. 2]

Henry A. Jones, Jr. (“Plaintiff”), currently incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 1, 2021. (See Compl., ECF No. 1). Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) and submitted copy of his prison trust account statement, pursuant to 28 U.S.C. § 1915(a) (ECF Nos. 2 & 3).

I. Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)

The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, obligates the Court to review complaints filed by anyone “incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program,” “as soon as practicable after docketing” and regardless of whether the prisoner prepays filing fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). Pursuant to this provision of the PLRA, the Court is required to review prisoner complaints which “seek[] redress from a governmental entity or officer or employee of a government entity,” and to dismiss those, or any portion of those, which are “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or which “seek monetary relief from a defendant who is immune.” 28 U.S.C. § 1915A(b)(1)-(2); Resnick v. Hayes, 213 F.3d

13 443, 446-47 (9th Cir. 2000); Hamilton v. Brown, 630 F.3d 889, 892 n.3 (9th Cir. 2011). “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

Plaintiff’s Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1) because it is identical and duplicative of another civil action he filed in this Court just five days before. See Jones v. Pollard, et al., S.D. Cal. Civil Case No. 3:21-cv-00162-MMA-RBM (“Jones I”). A court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

In Jones I, Plaintiff claims Defendants Pollard, Allison, and Does 1-6 violated his Eighth Amendment rights by failing to properly protect him from contracting CoVid-19 from his cellmate at RJD sometime in mid-January 2021. See Jones I, Compl., ECF No. 1 at 3-4. 12-14. Just five days later, and while Jones I remained pending before Judge Anello, Plaintiff filed a new Complaint with the Clerk of the Court, together with another Motion to Proceed IFP. The subsequent Complaint and IFP Motion were assigned to this Court as Jones v. Pollard, et al., Civil Case No. 3:21-cv-0187-AJB-WVG (“Jones II”), and the Court has now confirmed that the two Complaints and IFP Motions are in fact mere photocopies of each other. Both suits name the same Defendants, allege the same cause of action, request the same relief, and are signed by the same Plaintiff on the same day. Compare Jones I, Civil Case No. 3:21-00162-MMA-RBM, Compl., ECF No. 1, with Jones II, Civil Case No. 3:21-cv-00187-AJB-WVG, Compl., ECF No. 1.

A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it “merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d

11 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Because Plaintiff has already brought the same claims presented in the instant action against the same defendants in Jones v. Pollard, et al., S.D. Cal. Civil Case No. 3:21-cv-00162-MMA-RBM, the Court must dismiss this duplicative and subsequently filed civil case pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d 16 at 1105 n.2; Resnick, 213 F.3d at 446 n.1; see also Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688–89 (9th Cir. 2007) (“[I]n 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 or privies to the action, are the same.”), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008).

II. Conclusion and Order

Good cause appearing, IT IS HEREBY ORDERED that this civil action is DISMISSED as duplicative pursuant to 28 U.S.C. § 1915A(b)(1). IT IS FURTHER ORDERED that Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2) is DENIED as moot and that the dismissal of this case shall operate without prejudice to Plaintiff’s pursuit of his claims as alleged in Jones v. Pollard, et al., S.D. Cal. Civil Case No. 3:21-cv-00162-MMA-RBM.

Plaintiff is advised that any and all future filings should be filed in Jones J and include Civil Case No. 3:21-cv-00162-MMA-RBM in the caption. The Clerk will TERMINATE S.D. Cal. Civil Case No. 3:21-cv-00187-AJB-WVG and close the file.

IT IS SO ORDERED.

Dated: February 12, 2021

United States District Judge 4 ome