1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE LAMAR BAILEY, No. 2:22-cv-1670 WBS DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 J. CLASON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 18

. Plaintiff claims that defendants violated his rights under the Eighth 19 Amendment. Presently before the court is defendants’ fully briefed motion to dismiss. For the 20 reasons set forth below, the undersigned will recommend that the motion be denied. 21 BACKGROUND 22 I. Procedural History 23 Plaintiff initiated this action with the filing of the complaint. (ECF No. 1.) The 24 undersigned screened the complaint and determined it stated cognizable excessive force and 25 failure to protect claims but failed to state cognizable retaliation and equal protection claims. 26 (ECF No. 7.) Plaintiff was given the option to proceed with the complaint as screened or to file 27 an amended complaint. (Id.) Plaintiff opted to proceed immediately, voluntarily dismissing his 28 retaliation and equal protection claims (ECF No. 10), and service was ordered on defendants 1 (ECF No. 11). Following service, this action was referred to the court’s Post-Screening ADR 2 (Alternative Dispute Resolution) Project. (ECF No. 17.) Defendants requested to opt out. (ECF 3 No. 25.) The request was granted (ECF No. 26), and defendants filed the instant motion to 4 dismiss alleging that plaintiff’s case in this court is duplicative of a case plaintiff filed in 5 Sacramento Superior Court. (ECF No. 28). Based upon this court’s review of the Sacramento 6 Superior Court docket, plaintiff voluntarily dismissed that case on November 17, 2023. (Request 7 for Dismissal at 1, Bailey v. J. Clason et al., No. 34-2020-00288484 (Cal.Super. Ct. Nov. 17, 8 2023).)1 At this court’s order, defendants filed a supplemental brief addressing whether the 9 dismissal of plaintiff’s state court case impacts the instant motion to dismiss. (ECF No. 36.) 10 II. Allegations in Plaintiff’s Federal Court Complaint 11 The events giving rise to the claim occurred while plaintiff was incarcerated by the 12 California Department of Corrections and Rehabilitation (“CDCR”) housed at California State 13 Prison, Sacramento (“SAC”). (ECF No. 1 at 1, 3.) Plaintiff has identified SAC correctional 14 officers Calamia and J. Clason as defendants in this action. (Id. at 2.) 15 On March 26, 2020, plaintiff was housed on unit number 7, a unit designated for inmates 16 receiving mental health treatment. (Id. at 3.) Plaintiff states that on this date he was a participant 17 in the Mental Health Services Delivery System at the Enhanced Outpatient Level of Care. 18 Plaintiff notes this is the highest level of care available in CDCR. 19 Plaintiff alleges that he was using the telephone when he was approached by another 20 inmate. (Id.) “A long, boisterous argument ensued in which both mens[’] posture was highly 21 confrontational and appeared to be leading to an altercation.” (Id.) Officer Calamia was in the 22 housing unit and it was his “duty to control all movement in the building, to open and close doors, 23 closely monitor and observe the actions of the prisoners[,] and to provide coverage for the safety 24 and security of floor staff and inmates by employing a number of non-lethal and lethal weapons at 25 his disposal.” (Id.) 26 1 This court takes judicial notice of relevant documents and filings in plaintiff’s action in 27 Sacramento Superior Court. See Fed. R. Evid. 201; Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other 28 matters of public record.”). 1 Plaintiff alleges Calamia observed the confrontation between plaintiff and the other 2 inmate. (Id.) He further states the other inmate noticed Calamia’s observation and walked away 3 to the other side of the dayroom. “Several minutes later . . . Calamia called the other inmate over 4 and he stood there in a discussion with [correctional officer] Calamia and [correctional officer] J. 5 Clason for several minutes as [plaintiff] observed the three of them intermit[e]ntly looking over at 6 [plaintiff] and laughing.” (Id. at 3-4.) 7 As plaintiff was ending his phone call, the inmate approached plaintiff and stabbed him in 8 the chest and the ear. (Id. at 4.) He states that “[i]nitially, both defendants just watched the 9 attack. Then as [plaintiff] began trying to fight the assailant off of [him], defendant J. Clason 10 walked over yelling ‘break it up.’” (Id.) When the other inmate did not comply, Clason used OC 11 pepper spray directly at plaintiff as plaintiff was backing away from his attacker. 12 Plaintiff alleges defendants violated their responsibility as CDCR employees, failed to 13 protect him, and “inflicted further harm by deplo[y]ing OC Pepper Spray directly to his fresh 14 wounds and intentionally causing him enhanced pain from his injuries.” (Id.) 15 III. Allegations in Plaintiff’s Superior Court Complaint 16 In their motion to dismiss, defendants included plaintiff’s complaint from the Sacramento 17 Superior Court. (See ECF No. 28-2 at 4-8 (Complaint for Personal Injury).) In the Sacramento 18 Superior Court, plaintiff brought a state tort claim of negligence against defendants Clason and 19 Calamia on November 9, 2020.2 (ECF No. 28-2 at 4-8.) In his state court complaint, plaintiff 20 alleged that he was a “victim of a violent attempted murder” that was “set up by the 21 [defendants].” (Id. at 7.) “The officers did not follow protocol and were very blatant in their 22 attempt to promote violence against [plaintiff] which led to [plaintiff] suffering two stab wounds . 23 . . .” (Id.) By way of relief, plaintiff requests compensatory and punitive damages according to 24 proof. (Id. at 6.) 25 //// 26 //// 27

28 2 Three other defendants were named on the superior court complaint. (ECF No. 28-2 at 4.) 1 Plaintiff filed multiple requests for status updates, but no other progress was made in the case. 2 (See id. at 10-11 (Sacramento Superior Court Docket); ECF No. 30-1 at 4, 6, 8.) 3 Plaintiff moved to voluntarily dismiss the complaint, and it was dismissed on November 17, 4 2023. (Request for Dismissal at 1, Bailey v. J. Clason et al., No. 34-2020-00288484 (Cal.Super. 5 Ct. Nov. 17, 2023.) 6 MOTION TO DISMISS 7 In their motion to dismiss, defendants state that prior to filing the complaint in this action, 8 plaintiff sued defendants in Sacramento Superior Court. (ECF No. 28-1 at 3.) Defendants allege 9 that in both actions, plaintiff asserted that defendants failed to protect him from an assault by an 10 unidentified inmate on March 26, 2020, and that as a result of the attack plaintiff suffered stab 11 wounds to his chest and ear. (Id.) Defendants indicate that the only difference in the two actions 12 is that in the Sacramento Superior Court case plaintiff claimed defendants were negligent and in 13 the instant case plaintiff claims defendants’ actions violated his rights under the Eighth 14 Amendment. (Id.) 15 Defendants argue the complaint should be dismissed pursuant to the provisions of 16

(e)(2), which states that a court “shall dismiss the case at any time if [it] 17 determines that . . . the action or appeal is frivolous or malicious.” (Id. at 4.) Defendants argue 18 that a complaint that repeats pending, or previously litigated claims is frivolous or malicious 19 under § 1915(e)(2)(B)(i). Alternatively, defendants request that this action be stayed or dismissed 20 under the Colorado River doctrine in the interest of conserving judicial resources because of the 21 concurrent case in state court. (Id. at 6.) Defendants allege that of the eight factors courts 22 consider to determine whether the action should be stayed or dismissed, five weigh in favor of a 23 dismissal or stay of the instant action. (Id. at 7-8.) 24 //// 25 //// 26 //// 27 //// 28 //// 1 In plaintiff’s opposition to the motion to dismiss, plaintiff states:

2 [H]e erroneously mis-spelled the defendants name and was under the impression 3 that his complaint was legally deficient, and therefor[e] unmist[akably] lost for good. Plaintiff, is a lay-person in law, he accidently, erroneously filed a complaint 4 in state court, incorrectly filed as he knew nothing about state tort procedures. He was under the misconception that he misspelled the defendants name therefore, the 5 state tort was null & void. 6 (ECF No. 29 at 1.) He claims he erroneously filed in state court under negligence, but “he 7 actually could not find a charge that best described the case at hand.” (Id.) He also states that he 8 filed a motion to dismiss the state court case on October 16, 2023. (Id.) Thus, he concludes, the 9 federal court is the only forum left to prosecute his case. Defendants filed a reply. (ECF No. 30.) 10 In defendants supplemental brief, they argued that dismissal of plaintiff’s state court 11 action is not a relevant consideration to the instant motion and that allowing this action to proceed 12 will encourage future frivolous lawsuits. (ECF No. 36 at 3-4.) 13 LEGAL STANDARDS 14 I. Frivolous Complaint Under

15 “District courts retain broad discretion to control their own dockets and ‘[i]n the exercise 16 of that power they may impose sanctions including, where appropriate, default or dismissal.’” 17 Adams v. Cal. Dept. of Health Servs.,

, 688 (9th Cir. 2007) (quoting Thompson v. 18 Hous. Auth. of City of Los Angeles,

(9th Cir. 1986)), overruled on other 19 grounds by Taylor v. Sturgell,

(2008). The Prison Litigation Reform Act 20 (“PLRA”) states that “[n]otwithstanding any filing fee, or any portion thereof, that may have been 21 paid, the court shall dismiss the case at any time if the court determines that the action or appeal 22 is frivolous or malicious.”

(e)(2)(B)(i); see also 42 U.S.C. § 1997e(c)(1). The 23 Ninth Circuit has held that a complaint may be dismissed as frivolous if it “merely repeats 24 pending or previously litigated claims.” Cato v. United States,

, 1105 n.2 (9th Cir. 25 1995) (quoting Bailey v. Johnson,

(5th Cir. 1988)); see Bailey,

1021 (“[A] duplicative action arising from the same series of events and alleging many of the 27 same facts as an earlier suit” may be dismissed as frivolous or malicious under section 1915(e).) 28 1 To determine whether a claim is duplicative, the Ninth Circuit applies the test for claim 2 preclusion. Adams, 487 F.3d at 688. That test looks at: “(1) whether rights or interests 3 established in the prior judgment would be destroyed or impaired by prosecution of the second 4 action; (2) whether substantially the same evidence is presented in the two actions; (3) whether 5 the two suits involve infringement of the same right; and (4) whether the two suits arise out of the 6 same transactional nucleus of facts.” Costantini v. Trans World Airlines,

, 1201-02 7 (9th Cir. 1982) (quoting Harris v. Jacobs,

(9th Cir. 1980)). The last factor is 8 the most important. Id. at 1202. 9 II. Colorado River Doctrine 10 The Colorado River doctrine, deals “with the problem posed by the contemporaneous 11 exercise of concurrent jurisdiction by state and federal courts.” Smith v. Central Ariz. Water 12 Conservation Dist.,

, 1032 (9th Cir. 2005); see Colorado River Water Conservation 13 District v. United States,

(1976). “Generally, as between state and federal courts, 14 the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning 15 the same matter in the Federal court having jurisdiction . . . .’” Colorado River,

16 (quoting McClellan v. Carland,

(1910)). Given the obligation of federal courts 17 to exercise the jurisdiction given to them, “and the absence of weightier considerations of 18 constitutional adjudication and state-federal relations, the circumstances permitting the dismissal 19 of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial 20 administration are considerably more limited than the circumstances appropriate for abstention. 21 The former circumstances, though exceptional, do nevertheless exist.” Id. at 818. 22 When federal issues are raised in a federal case, this is always a “major consideration weighing 23 against surrender” of federal jurisdiction. Moses H. Cone Mem’l Hosp. v. Mercury Constr. 24 Corp.,

(1983). This is especially true in the context of § 1983 cases where there is 25 a strong interest in providing a federal forum to hear these claims. Tovar v. Billmeyer,

(9th Cir. 1980). Therefore, the Colorado River doctrine should only be invoked when 27 there are clear and exceptional circumstances weighing in favor of dismissal.

28 //// 1 In deciding whether to dismiss or stay a federal case in favor of a state case, courts in the 2 Ninth Circuit look at the following eight factors: 3 (1) [W]hich court first assumed jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to 4 avoid piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law provides the rule of 5 decision on the merits; (6) whether the state court proceedings can adequately protect the rights of the federal litigants; (7) the desire to 6 avoid forum shopping; and (8) whether the state court proceedings will resolve all issues before the federal court. 7 R.R. St. & Co. v. Transport Ins. Co.,

(9th Cir. 2011) (citing Holder v. 8 Holder,

(9th Cir. 2002)). “Some factors may not apply in some cases, and 9 ‘[a]ny doubt as to whether a factor exists should be resolved against a stay’ or dismissal.” 10 Montanore Minerals Corp. v. Bakie,

(9th Cir. 2017), as amended on denial 11 of reh’g and reh’g en banc (Oct. 18, 2017) (quoting Seneca Ins. Co. v. Strange Land, Inc., 862

(9th Cir. 2017)). 13 ANALYSIS 14 I. Motion to Dismiss as Frivolous under

(e) 15 Defendants argue that plaintiff’s claim should be dismissed as frivolous under the PLRA 16 because it is duplicative of a pending or previously litigated claim in state court. However, the 17 cases defendants cite to support their argument that the instant case is duplicative under the PLRA 18 involve determining whether an ongoing case in federal court is duplicative of another case in 19 federal court, which is not the situation here. See, e.g., McWilliams v. Colorado,

, 20 574 (10th Cir. 1997); Pittman v. Moore,

(5th Cir. 1993); Van Meter v. Morgan, 518

(8th Cir. 1975); Richson-Bay v. Palmer, No. 23-cv-00778 NODJ EPG PC,

812847 (E.D. Cal. Feb. 27, 2024) (Findings and Recommendations not yet accepted or rejected) 23 (finding case in federal court duplicative of another case in federal court that plaintiff voluntarily 24 dismissed, after the court moved to dismiss it); see also Adams, 487 F.3d at 688 (“Plaintiffs 25 generally have ‘no right to maintain two separate actions involving the same subject matter at the 26 same time in the same court and against the same defendant.’” (emphasis added) (citation 27 omitted). 28 1 The more appropriate analysis to determine whether a claim in federal court is duplicative 2 of a claim in state court is under the Colorado River doctrine, discussed below. See Noel v. Hall, 3

(9th Cir. 2003) (stating that it is a “well-established rule[]” that “overlapping 4 or even identical federal and state court litigation may proceed simultaneously, limited only by 5 doctrines of abstention and comity”); Hudson v. Bigney, No. 2:11–cv–3052 LKK AC P, 2012

, at *3 (E.D. Cal. Dec. 12, 2012) (“The mere existence of simultaneous state and 7 federal lawsuits does not support dismissal or stay.”);

(“[A]ny discussion of federal court 8 deferral to a parallel state proceeding for reasons apart from the three traditional categories of 9 abstention [not applicable here] must begin with Colorado River . . . .” (citing Calvert Fire Ins. 10 Co. v. Am. Mut. Reinsurance Co.,

(7th Cir. 1979)); see also Sanzaro v. 11 Ardiente Homeowners Ass’n LLC,

(9th Cir. 2013) (“Dismissal of 12 [plaintiffs’] FHA claim as duplicative of a state court action was improper because the other 13 action is not in the same court as the present action and does not include [plaintiffs’] FHA claim.” 14 (citing Adams, 487 F.3d at 688-89); Dzhanikyan v. Liberty Mutual Ins. Co., No. CV 14-00415 15 MMM MANx,

, at *9 (C.D. Cal. May 9, 2014) (listing cases limiting Adams 16 to situations where both cases are pending before the same federal court). The court addresses the 17 Colorado River doctrine below. 18 Further, based on this court’s reading of the Sacramento Superior Court docket, plaintiff 19 dismissed his state court case on November 17, 2023. (Request for Dismissal at 1, Bailey v. J. 20 Clason et al., No. 34-2020-00288484 (Cal.Super. Ct. Nov. 17, 2023).) Since plaintiff no longer 21 has an ongoing case in state court and no substantial progress was made in that case, there is 22 currently no “pending” or “previously litigated” case. Therefore, the motion to dismiss as 23 frivolous is denied. 24 II. Request to Stay Proceedings Under Colorado River 25 Defendants also argue that this case should be dismissed or stayed for the purposes of 26 wise judicial administration under the Colorado River doctrine because it is duplicative of an 27 ongoing case in state court. Defendants allege that five of the eight factors courts consider 28 support dismissal or stay. (ECF No. 28-1 at 7-8.) 1 However, since there is no longer a pending case in state court, the Colorado River 2 doctrine no longer applies. See Ill. Sch. Dist. Agency v. Pac. Ins. Co., Ltd.,

, 724 3 n.4 (7th Cir. 2006) (“[B]ecause a state court action was no longer pending, Colorado River 4 abstention would have been inappropriate.”); Metro. Life Ins. Co. v. Guardian Life Ins. Co. of 5 Am., No. 06 C 5812,

, at *3 (N.D. Ill. Apr. 17, 2007) (“[T]he state court case 6 has been concluded, and Colorado River no longer applies.”); Mahnke v. Executive Tans, No. 07- 7 1416 DSD JJG,

, at *2 (D. Minn. Aug. 13, 2007) (“The typical remedy, where 8 Colorado River abstention occurs, is to stay or dismiss until the state court proceeding is 9 concluded. Because the Colorado district court has already proceeded to a final judgment, 10 concerns about Colorado River abstention have become moot.”); see also Bass v. Butler,

(3d Cir. 2001) (“[A]bstention is now inapplicable because it provides for federal 12 deference to ongoing . . . parallel proceedings.”). 13 Because plaintiff has dismissed his case in superior court, there is no longer a pending 14 state court case. There is no longer a concern about wise judicial administration or waste of 15 judicial resources because there is only one ongoing case. See Colorado River,

. 16 Therefore, the court will deny defendant’s request to dismiss or stay under the Colorado River 17 doctrine. 18 CONCLUSION 19 Defendants have stated that the defendant identified by plaintiff as “Clason” should have 20 been identified as Clawson. The Clerk of the Court is ORDERED to update the docket to reflect 21 the proper spelling of this defendant’s name. 22 For the reasons set forth above, IT IS HEREBY RECOMMENDED that defendants’ 23 motion to dismiss and request for stay (ECF No. 28) be denied. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of

(b)(l). Within twenty-one days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 1 | objections shall be filed and served within fourteen days after service of the objections. The 2 | parties are advised that failure to file objections within the specified time may waive the right to 3 | appeal the District Court’s order. Martinez v. YIst,

(9th Cir. 1991). 4 | Dated: June 21, 2024 5 6 4 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 8 9 10 11 DB:18 12 | DB/DB Prisoner Inbox/Civil Rights/S/bail 1670.mtd.fr 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10