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Tombs v. Wallace

United States District Court, Ninth Circuit

November 6, 2013

LARRY E. TOMBS, Plaintiff,
v.
JORDAN KEITH WALLACE, Defendant.

ORDER AND FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. On September 9, 2013, the undersigned issued findings and a recommendation that this action be dismissed without prejudice because plaintiff had not filed an in forma pauperis affidavit or paid the appropriate filing fee. ECF No. 5. Since that time, plaintiff has been released from prison, ECF No. 8, and has filed a motion to proceed in forma pauperis, ECF Nos. 6, 7. The court will vacate its September 9, 2013 recommendation of dismissal for the reasons discussed below.

Plaintiff's complaint was filed with the court on July 5, 2013. The court's own records reveal that on the same date, plaintiff filed an identical complaint containing the same allegations against defendant Jordan Wallace. Tombs v. Wallace, No. 2:13-cv-1340 MCE CMK (E.D. Cal.).[1] The complaint filed in Case No. 2:13-cv-1340 MCE CMK contains only eleven pages. The complaint filed in the instant action contains fourteen pages plus a civil case cover sheet. Due to the duplicative nature of the present action, the court will recommend that the instant complaint be dismissed.

Accordingly, IT IS ORDERED that the September 9, 2013 Findings and Recommendations are VACATED.

IT IS RECOMMENDED that:

1. This action be dismissed without prejudice. See Fed.R.Civ.P. 41(b); and

2. The Clerk of Court is directed to file the complaint in the instant action, ECF No. 1, as an amended civil rights complaint in Case No. 2:13-cv-1340 MCE CMK.

These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "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. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).


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