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Boerner v. Cdcr

United States District Court, Ninth Circuit

May 8, 2013

ROBERT DALE BOERNER, Petitioner,
v.
CDCR, Respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT TO TERMINATE ACTION, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY (ECF No. 1)

STANLEY A. BOONE, Magistrate Judge.

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).

Petitioner filed the instant petition for writ of habeas corpus on April 26, 2013. Petitioner challenges a 2011 conviction in the Kings County Superior Court involving an altercation between himself and prison staff during the delivery of his medication. (Pet. at 1-6.)

As will be explained below, the petition must be dismissed as duplicative of another action currently pending in this Court.

I.

DISCUSSION

A. Procedural Grounds for Summary Dismissal

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the face of the petition... that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez , 908 F.2d 490 (9th Cir. 1990).

B. Instant Petition is Duplicative of Petition in Case No. 1:13-cv-00328-JLT (HC)

In the petition filed in case number 1:13-cv-00328-JLT (HC) ("the prior case"), Petitioner challenges the same 2011 conviction from the Kings County Superior Court for an altercation which took place between himself and prison staff during the delivery of his medication. In that action, the original petition filed on February 26, 2013, was dismissed with leave to amend on March 26, 2013. On April 4, 2013, Petitioner filed an amended petition in that case. On April 18, 2013, the Court required Petitioner to submit a supplement to the amended petition to name the proper respondent. Petitioner filed a supplement on April 19, 2013.

As previously stated, in the instant petition Petitioner challenges the same 2011 conviction from the Kings County Superior Court.

"After weighing the equities of the case, the district court may exercise its discretion 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. California Dept. of Health Services , 487 F.3d 684, 688 (9th Cir. 2007). "Plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.'" Adams , 487 F.3d at 688 (quoting Walton v. Eaton Corp. , 563 F.2d 66, 70 (3d Cir. 1977) (en banc)).

In assessing whether a second action is duplicative of the first, the court examines whether the causes of action and relief sought, as well as the parties or privies to the action, are the same. Adams , 487 F.3d at 689. First, the court must examine whether the causes of action in the two suits are identical pursuant to the transaction test, developed in the context of claim preclusion. Id . Second, the court determines whether the defendants are the same or in privity. Privity includes an array of relationships which fit under the title of "virtual representation." Kourtis v. Cameron , 419 F.3d 989, 996 (9th Cir. 2005). "The necessary elements of virtual representation are an identity of interests and adequate representation." Adams , 487 F.3d at 691 (citing Kourtis , 419 F.3d at 996). "Additional features of a virtual representation relationship include a close relationship, substantial participation, and tactical maneuvering." Adams , 487 F.3d at 691 (quoting Kourtis , 419 F.3d at 996).

A plaintiff is required to bring at one time all of the claims against a party or privies relating to the same transaction or event. Adams , 487 F.3d at 693. The court has discretion to dismiss a duplicative complaint with prejudice to prevent a plaintiff from "fragmenting a single cause of action and litigating piecemeal the issues which could have been resolved in one action." Id. at 694 ...


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