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Emelito Exmundo v. Mta Drew

December 22, 2011

EMELITO EXMUNDO,
PLAINTIFF,
v.
MTA DREW, ET AL.,
DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, AS DUPLICATIVE OF AND OBJECTIONS DUE WITHIN THIRTY DAYS

I. Procedural History

Plaintiff Emelito Exmundo ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis.

On February 23, 2006, Plaintiff filed a civil action in this Court, pursuant to 42 U.S.C. § 1983. See Emelito Exmundo v. A.K. Scribner, et al., 1:06-cv-00205-AWI-GBC (E.D. Cal).

On April 9, 2007, Plaintiff filed the instant action in California Superior Court, County of Kings, pursuant to 42 U.S.C. § 1983. Doc. 1.

On June 15, 2007, Plaintiff filed a third civil action in California Superior Court, County of Kings, pursuant to 42 U.S.C. § 1983. See Emelito Exmundo v. Vella, et al., 1:07-cv-01714-AWIGBC (E.D. Cal). On November 21, 2007, Defendants removed Exmundo v. Vella to Federal Court. See id.

On November 26, 2007, Defendants removed the instant action to Federal Court.Doc. 1. On March 31, 2009, the Court ordered the consolidation of cases Exmundo v. Scribner, 1:06-cv-00205-AWI-GBC and Exmundo v. Vella, 1:07-cv-01714-AWI-GBC.

On June 19, 2009, in Exmundo v. Scribner, Plaintiff filed a second amended complaint. Doc. 32. On October 8, 2010, the Court screened Plaintiff's complaint and required Plaintiff to amend his complaint or notify the Court of willingness to proceed on only the cognizable claims. Doc 35.

On October 15, 2010, the Court ordered the joined cases severed.

On November 3, 2010, in Exmundo v. Scribner, Plaintiff notified the Court of his willingness to proceed on only the cognizable claims. Doc 37. On November 15, 2010, the Court ordered that the case proceed on only the cognizable claims against Defendants Bell and Johnson for excessive force and dismissed the remaining claims and defendants. Doc 38.

On January 14, 2011, in Exmundo v. Vella, Plaintiff filed a second amended complaint. Doc. 26. On May 2, 2011, the Court screened Plaintiff's claim and required Plaintiff to amend his complaint or notify the Court of willingness to proceed on only the cognizable claims. Doc 28. On May 12, 2011, Plaintiff notified the Court of his willingness to proceed on only the cognizable claims. Doc 29. On August 31, 2011, the Court ordered that the case proceed on only the cognizable claims against Defendant Vogel for excessive force and retaliation and dismissed the remaining claims and defendants. Doc 31.

On October 5, 2011, Plaintiff filed his fourth amended complaint in the instant action. Doc. 42. For the reasons set forth below, the undersigned recommends dismissal of this action, with prejudice, as duplicative of Civil Action Numbers 1:06-cv-00205 and 1:07-cv-01714.

II. Standard of Review

Pursuant to 28 U.S.C. § 1915A(a), the Court is required to screen prisoner complaints seeking relief against a governmental entity, officer, or employee and must dismiss a complaint if the action is frivolous, malicious, or fails to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to dismissal as either frivolous or malicious under 28 U.S.C. § 1915(e). See, e.g., Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or previously litigated claims may be considered abusive and dismissed under ยง 1915. Cato, 70 F.3d at 1105 n.2; Bailey, 846 F.2d at 1021. Repeating the same factual allegations asserted in an earlier case, even if now filed against new defendants, is subject to dismissal as duplicative. See, e.g., Bailey, 846 F.2d at 1021; Van Meter v. ...


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