1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MYOHO MYSTIC WINSTON, JR., No. 1:24-cv-00864-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 13 v. TO THIS ACTION 14 JEFF MACOMBER, et al., FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION 15 Defendants. AS DUPLICATIVE 16 (ECF No. 1) 17 18 19 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42

. 21 Currently before the Court is Plaintiff’s complaint, filed July 29, 2024. 22 I. 23 SCREENING REQUIREMENT 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 26 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 27 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 28 1 “seek[] monetary relief against a defendant who is immune from such relief.”

1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 3 A complaint must contain “a short and plain statement of the claim showing that the 4 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 6 conclusory statements, do not suffice.” Ashcroft v. Iqbal,

(2009) (citing Bell 7 Atlantic Corp. v. Twombly,

(2007)). Moreover, Plaintiff must demonstrate 8 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.

F.3d 930, 934 (9th Cir. 2002). 10 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 11 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman,

1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 13 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 14 that each named defendant is liable for the misconduct alleged. Iqbal,

; Moss 15 v. U.S. Secret Service,

(9th Cir. 2009). The “sheer possibility that a defendant 16 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 17 liability” falls short of satisfying the plausibility standard. Iqbal,

; Moss,

. 19 II. 20 SUMMARY OF ALLEGATIONS 21 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of 22 the screening requirement under

. 23 On or about April 28, 2020, Plaintiff sought emergency health care and was taken to an 24 outside hospital, Adventist Health in Bakersfield, California. Plaintiff was informed that he was 25 suffering from blood clots in the upper level chest and the only way to resolve the matter was to 26 place a “stent” in the blocked vein. Plaintiff informed medical officials that he would rather not 27 have the surgery because it was “invasive.” Dr. Russell K. Paul informed Plaintiff that the 28 placement of the stent was the only manner in which to correct the block and the procedure was 1 required. 2 On April 29, 2020, the stent was placed into Plaintiff’s upper left chest, and he was 3 subsequently released back to the prison facility. 4 On or about July 1, 2021, Plaintiff suffered continuing swelling and severe pain in the 5 upper left chest area where the “stent” had been placed, and Plaintiff was taken to the outside 6 hospital. Test were performed which determined that the stent had ruptured which required 7 immediate medical intervention or Plaintiff would be subjected to life threatening conditions. 8 Plaintiff was also informed that he would require additional higher level of care for the rest of his 9 life. 10 On this same date, Plaintiff was informed that the “stent” would not be removed at that 11 time because it would require “open-chest” surgery which none of the medical professionals were 12 willing to perform. Since that date, Plaintiff has continuously and repeatedly required removal of 13 the broken and damaged stent as it causes swelling and constant pain in his upper left chest and 14 left arm. 15 Plaintiff believes and asserts that Dr. Paul insisted Plaintiff undergo the procedure of 16 placing the stent because Plaintiff is an African American convicted felon serving a prison term 17 with limited education. Plaintiff asserts that Dr. Paul took advantage of Plaintiff as he was made 18 to feel that if he insisted on a different course of treatment, Dr. Paul “might not perform so well.” 19 During Plaintiff’s stay at the hospital, he discussed with Dr. Condi the options for future 20 medical care and it seemed as though everybody agreed that the broken stent needed to be 21 removed, but because Dr. Paul initiate the stent removal no one else was willing to interfere or 22 correct the rupture. “Plaintiff believes this withdrawal by fellow medical professionals to be out 23 of the fear of becoming co-defendant(s) rather than out of professional courtesy.” (Compl. at 5.) 24 On March 6, 2023, the clotting issue is the only medical condition resolved. On this date, 25 Dr. Anna Gafter removed as much of the stent was possible as many small pieces traveled and 26 were unable to locate. “The medical procedure that was performed by Dr. [Gafter] thus becomes 27 that ever necessary ‘other’ opinion that offsets the plaintiff’s word against the defendant’s word 28 that this court said was necessary in order to state a claim.” (Compl. at 5.) 1 Plaintiff claims Jeff Macomber as the Secretary of the California Department of 2 Corrections and Rehabilitation is liable under the theory of “respondeat superior.” 3 III. 4 DISCUSSION 5 An examination of Plaintiff's instant complaint and a review of the Court’ s docket reveals 6 that it is duplicative of the complaint filed in Winston v. Paul, No. 1:22-cv-00343-JLT-EPG (PC), 7 which was dismissed for failure to state a cognizable claim for relief on June 28, 2022, and 8 affirmed on appeal on August 21, 2023.1 (See ECF Nos. 10, 18, No. 1:22-cv-00343-JLT-EPG 9 (PC).) 10 “[A] duplicative action arising from the same series of events and alleging many of the 11 same facts as an earlier suit” may be dismissed as frivolous or malicious under section 1915(e). 12 See Bailey v. Johnson,

(5th Cir. 1988). “Dismissal of the duplicative 13 lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial 14 economy and the ‘comprehensive disposition of litigation.’ ” Adams v. California Dep’t of Health 15 Servs.,

, 692 (9th Cir. 2007) (citation omitted), overruled on other grounds by Taylor 16 v. Sturgell,

(2008). To determine whether a claim is duplicative, courts use the 17 test for claim preclusion. Adams, 487 F.3d at 688. “Thus, in assessing whether the second action 18 is duplicative of the first, [courts] examine whether the causes of action and relief sought, as well 19 as the parties or privies to the action, are the same.” Id. at 689 (citations omitted). “Plaintiffs 20 generally have no right to maintain two separate actions involving the same subject matter at the 21 same time in the same court and against the same defendant.” Id. at 688 (internal quotation marks 22 and citations omitted). 23 A prisoner complaint that merely repeats pending or previously litigated claims may be 24 considered abusive and dismissed under the authority of 28 U.S.C. § 1915A. Cf. Cato v. United 25 States,

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

) 26 (duplicative in forma pauperis complaint may be considered abusive and dismissed under 28

). That a prisoner adds an additional defendant in his later-filed action does not

28 1 The Court notes that Plaintiff neglected to list this case as a previous lawsuit. (See Compl. at 2.) 1 compel a different result. See Bailey,

(complaint repeating same allegations 2 asserted in earlier case, even if now filed against new defendants, is subject to dismissal as 3 duplicative). 4 In both this action and Winston v. Paul, No. 1:22-cv-00343-JLT-EPG (PC), Plaintiff 5 alleges Defendant Dr. Paul inappropriately placed the stent in Plaintiff’s chest which later 6 ruptured. The Court finds that this action is duplicative of Winston v. Paul, No. 1:22-cv-00343- 7 JLT-EPG (PC) because it repeats the same allegations against Dr. Paul. That Plaintiff has added 8 Jeff Macomber as another Defendant to this action does not compel a different result. See Bailey, 9

(complaint repeating same allegations asserted in earlier case, even if now filed 10 against new defendants, is subject to dismissal as duplicative). Further, the fact that Plaintiff now 11 claims the stent was removed in March 2023, does not change the Court’s analysis. See 12 Takahashi v. Bd. of Trustees,

, 851 (9th Cir. 1986) (asserting a new legal theory for 13 recovery in a subsequent action does not give rise to a new cause of action; “[e]ven where there 14 are multiple legal theories upon which recovery might be predicated, one injury gives rise to only 15 one claim of relief.”) Nonetheless, the additional factual allegations do not give rise to a claim 16 for deliberate indifference by Dr. Paul because the mere difference of opinion between medical 17 professionals, as alleged by Plaintiff, does not give rise to a claim for relief. See Toguchi v. 18 Chung,

(9th Cir. 2004) (mere differences of opinion between a prisoner and 19 prison medical staff or between medical professionals as to the proper course of treatment for a 20 medical condition do not give rise to a § 1983 claim); see also Jackson v. McIntosh,

, 21 332 (9th Cir. 1996); Sanchez v. Vild,

(9th Cir. 1989); Franklin v. Oregon, 662

, 1344 (9th Cir. 1981). 23 Accordingly, Plaintiff's case is duplicative of Winston v. Paul, No. 1:22-cv-00343-JLT- 24 EPG (PC) because the two suits arise out of the same transactional nucleus of facts, i.e., improper 25 placement and failure to remove a stent in Plaintiff’s chest in violation of his civil rights. Thus, 26 this action should be dismissed. In addition, given this defect, the Court finds that further 27 amendment would be futile. See California Architectural Bldg. Prod. v. Franciscan Ceramics, 818

, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. 1 | Bureau,

, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely 2 | given, the court does not have to allow futile amendments). 3 IV. 4 ORDER AND RECOMMENDATION 5 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall randomly 6 | assign a District Judge to this action. 7 Further, it is HEREBY RECOMMENDED that the instant action be dismissed as 8 | duplicative. 9 This Findings and Recommendation will be submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen (14) 11 | days after being served with this Findings and Recommendation, Plaintiff may file written 12 || objections with the Court. The document should be captioned “Objections to Magistrate Judge's 13 | Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 14 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,

, 15 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,

(9th Cir. 1991)). 16 17 18 IT IS SO ORDERED. DAM Le 19 | Dated: _August 9, 2024 _ ef UNITED STATES MAGISTRATE JUDGE

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