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Battiste v. DVI

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 11, 2010

EDWARD ANTONIO BATTISTE, PLAINTIFF,
v.
DVI ET AL., DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a former state prisoner proceeding pro se. On October 6, 2009, plaintiff commenced this action by filing a complaint pursuant to 42 U.S.C. § 1983. The court's own records reveal that, on July 27, 2009, plaintiff filed a complaint containing virtually identical allegations against the same defendants.*fn1 (Case No. CIV S-09-2053 GGH P).*fn2 Due to the duplicative nature of the present action, the court will recommend that plaintiff's complaint be dismissed.

IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to randomly assign a United States District Judge to this action; and

2. Plaintiff's motion for appointment of counsel (Doc. No. 9) is denied without prejudice to refiling in Case No. CIV S-09-2053 GGH P.

IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. A document containing objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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