FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION AS DUPLICATIVE OF OBJECTIONS DUE WITHIN 21 DAYS
Findings and Recommendations
On May 9, 2011, Plaintiff Michael Eugene Hollis ("Plaintiff"), a
federal prisoner proceeding pro se and in forma pauperis, filed this
civil rights action pursuant to 42 U.S.C. § 1983, alleging various
claims against the Fresno County Jail. Doc. 1. *fn1
On October 17, 2011, the Court dismissed Plaintiff's
complaint, with leave to amend. Doc. 7. On January 20, 2012, Plaintiff
filed a first amended complaint. Doc. 10. On March 23, 2012, Plaintiff
filed the exhibits to his first amended complaint. Doc. 13.
*fn2 Upon review of the first amended complaint
and exhibits, the Court finds that this action is substantively
identical to another case currently pending in this district that
Plaintiff filed on March 11, 2009, Michael Eugene Hollis v.
Russell York, et al. , No.
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 § 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. Morgan , 518 F.2d 366, 368 (8th Cir. 1975). "Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the comprehensive disposition of litigation." Adams v. California , 487 F.3d 684, 688, 692-94 (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 . . .
"There must be the same parties, or, at least, such as represent the
same interests; there must be the same rights asserted and the same
relief prayed for; the relief must be founded upon the same facts, and
the . . . essential basis, of the relief sought must be the same."
Curtis v. Citibank, N.A. , 226 F.3d 133 (2d Cir.
2000) (holding that the trial court did not abuse its discretion in
dismissing Curtis II claims arising out of the
same events as those alleged in Curtis I , which
claims would have been heard if plaintiffs had timely raised them).
Serlin v. Arthur Andersen & Co. , 3 F.3d 221,
223-24 (7th Cir. 1993) ("[A] suit is duplicative if the claims,
parties, and available relief do not significantly differ between the
See Adams , 487 F.3d at 689. From a review of Plaintiff's two cases, the Court finds that this case is duplicative of Plaintiff's prior current pending case because the claims, parties, and available relief do not significantly differ between the two actions.
1. Hollis v. York , Filed March 11, 2009, No. 1:09-cv-00463-AWI-BAM
On March 11, 2009, Plaintiff filed Hollis v. York , No. 1:09-cv-00463-AWI-BAM. In Plaintiff's complaint, he alleged violations against the Fresno County Jail from August 19, 2008 through June 16, 2009. See Hollis v. York , No. 1:09-cv-00463-AWI-BAM, Compl. & Screening Order, Docs. 1, 20. Plaintiff named defendants Russell York, Director Fresno U.S. Marshal's Service, Margaret Mims, Fresno County Sheriff, John / Jane Doe, Fresno County Jail Bureau Commander, John / Jane Doe, Head of Canteen of Fresno, Inc.; Shumate, correctional sergeant; Oliver, correctional officer; Jane Doe, Correctional Sergeant; Cartier, correctional corporal, Osborne, correctional officer; Cunha, correctional officer; and Laird, M.D., Fresno County Jail Medical Services. See id. Plaintiff alleged deficient food service, denial of medical needs, "mis-classification" in the grievance process, threats to safety, harassment and retaliation, substandard dental care, and denial of correspondence. See id.
On September 26, 2011, Plaintiff filed a third amended complaint,
naming defendants Dawson, Calvert, Attorney General Eric Holder,
Sheriff Mims, Russell York, Director Fresno U.S. Marshal's Service,
and John / Jane Doe. See Hollis v. York , 3d Am.
Compl. & Screening Order, Docs. 50, 51. Plaintiff alleged cold
temperatures in the jail, denial of medical care, forced housing with
gang members, denial of law library access, denial of grievances, and
being placed in the "hole." See id. Plaintiff
requested compensatory and punitive damages, and injunctive relief.
See id. On November 10, 2011, the Court found
service appropriate for defendants Dawson and Calvert, and Plaintiff's
case is still currently pending in this district. See Hollis
v. York , Service Order, Doc. 54.
2. The Current Case, Hollis v. Mims , Filed May 9, 2011, No. 1:11-cv-00739-AWI-GBC
On May 9, 2011, Plaintiff filed the current case, alleging
violations against the Fresno County Jail from August 19, 2008 through
June 16, 2009. See Compl. & Screening Order, Docs.
7. Plaintiff named defendants Margaret Mims, John / Jane Does,
Dawson, and Calvert. See id. Plaintiff alleged
denial of access to courts, cold jail temperatures ...