The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss, filed on March 7, 2012 (Doc. No. 13), to which plaintiff filed his opposition on March 22, 2012 (Doc. No. 17). Defendants do not contend that plaintiff's allegations fail to state a claim for relief. See generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (discussing standards for motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)). Rather, they rely on case law providing for dismissal of a duplicative lawsuit. Defendants are correct that the court's broad discretion to control its docket includes the authority to dismiss a duplicative later-filed action, to stay that action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions. Adams v. Cal. Dept. Of health Services, 487 F.3d 684, 688 (9th Cir. 2007). As explained in greater detail below, however, this principle applies only where the later-filed action is duplicative of a pending federal action. It is not the rule that applies here, and it does not support dismissal of the instant complaint.
Allegations of the Federal Complaint
This § 1983 case was filed on November 17, 2011 (or by application of the mailbox rule,*fn1 on November 13, 2011). Plaintiff claims that Licensed Vocational Nurse (LVN) K. Adam and Correctional Officer (CO) Bigney violated his rights under the First and Eighth Amendments. Plaintiff alleges that on September 12, 2010, after defendant Adam passed him a tube containing his methadone medication, he returned the empty tube to Adam. She then falsely told CO Bigney that it was not the same tube she had just passed to plaintiff. Plaintiff was told to step out of his cell, and he and his cell were searched. Doc. No. 1 at 3.
Plaintiff told the defendants he was going to write them up for harassment. Defendant Bigney then pepper-sprayed plaintiff in the face and eyes and tackled him to the floor, repeatedly hitting plaintiff in the head and kneeing him in the back. Plaintiff was then handcuffed and taken to have the pepper spray rinsed off. He was placed in a cage in handcuffs and without his cane for five hours, without medical treatment for his burning eyes and aching left side. Plaintiff alleges that he was attacked by defendants in retaliation for having filed grievances against defendant Adam regarding medical issues. Plaintiff also states that defendant Bigney had previously been written up for racist actions toward black inmates and had been sanctioned for assaulting minority inmates who alleged that he used excessive force.*fn2 Doc. No. 1 at 3-4.
Plaintiff's Pending State Court Actions
By their motion, defendants direct the court's attention to two pending state cases in which plaintiff has raised claims arising from the same incident. Doc. 13-2, Exhibits A & B.
The court takes judicial notice of both proceedings.*fn3
Hudson v. Bigney, Sacramento Superior Court No. 34-2011-96175 Plaintiff filed suit against CO Bigney on January 28, 2011 in Sacramento County Superior Court, alleging that Bigney's assault on September 12, 2010 violated the California Penal Code and the California Constitution. Doc. No. 13-2 at 5-26 (Exhibit A). On the California civil complaint form plaintiff indicates the following as his causes of action: general negligence, intentional tort, products liability and premises liability. Id. at 7, 16-19. He seeks damages for "pain and suffering, mental and emotional distress cause[d] by the excessive use of force . . ." He alleges that as the result of Bigney's attack he suffers from breathing trouble, sleep apnea, and chronic back, neck and shoulder pain. Plaintiff also seeks punitive damages. Id. at 7, 20.
Hudson v. Adam, Sacramento Superior Court No. 34-2011-96155 In this complaint, also filed on January 28, 2011, plaintiff seeks damages from LVN Adam for her conduct related to the September 12, 2010 incident. Doc. No. 13-2 at 28-(Exhibit B). Plaintiff alleges causes of action for general negligence, intentional tort, premises liability and products liability, and seeks general and punitive damages. Id. at 30-35. Plaintiff alleges in support of his state law claims that defendant Adam instigated Bigney's attack in retaliation against plaintiff for having written her up on numerous occasions and having spoken to her supervisor about her claimed "unprofessional behavior." Id. at 32, 38-39. Plaintiff also alleges that Adam used racially offensive language on numerous occasions. Id. at 32.
Standards Governing Dismissal or Stay of Duplicative Action Defendants contend that the instant action should be dismissed or stayed in light of the previously-filed state court actions. The authorities cited in support of the motion, however, deal exclusively with duplicative lawsuits filed in the same or different federal court(s). See United States v. The Haytian Republic, 154 U.S. 118, 123-124 (1894); Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 851 (1st Cir. 1947); Walton v. Eaton, 563 F.2d 66, 70 (3d Cir. 1977); Serlin v. Arthur Anderson & Co., 3 F.3d 221, 224 (7th Cir. 1993); Adams v. Cal. Dep't of Health Services., 487 F.3d 684, 688 (9th Cir. 2007). None of these cases involves the dismissal or stay of a federal lawsuit due to the pendency of state court litigation involving the same parties and the same underlying facts.
The Supreme Court has made it perfectly clear that while the general rule as between federal district courts is to avoid duplicative litigation, the general rule as between state and federal courts is that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." Colorado River Water Conservation Dist. v. United States., 424 U.S. 800, 817 (1976). Defendants fail to cite this governing authority, although "[a]ny discussion of federal court deferral to a parallel state proceeding for reasons apart from the three traditional categories of abstention [not applicable here] must begin with Colorado River . . ." Calvert Fire Ins. Co. v. Am. Mut. Reinsurance Co., 600 F.2d 1228, 1233 (7th Cir. 1979).
In Colorado River the Supreme Court explained that the "difference in general approach between state-federal concurrent jurisdiction and wholly federal concurrent jurisdiction stems from the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." 424 U.S. at 817. Federal court deferral to parallel state litigation therefore requires exceptional circumstances. Id. at 813. When faced with a request for abstention under Colorado River, the court must ask not whether there is "some substantial reason for the exercise of federal jurisdiction" but whether "exceptional circumstances . . . justify the surrender of that jurisdiction." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983) (emphasis in original).
In assessing whether exceptional circumstances exist, the court may consider factors including the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent forums. No one factor is necessarily determinative. Colorado River, 424 ...