United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
a former state prisoner proceeding pro se, brings this civil
rights action pursuant to 42 U.S.C. § 1983. Pending
before the court is plaintiff's complaint (Doc. 1).
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or
portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or
(3) seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915A(b)(1), (2).
Moreover, the Federal Rules of Civil Procedure require that
complaints contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This means that claims must be stated
simply, concisely, and directly. See McHenry v.
Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to
Fed.R.Civ.P. 8(e)(1)). These rules are satisfied if the
complaint gives the defendant fair notice of the
plaintiff's claim and the grounds upon which it rests.
See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir.
1996). Because plaintiff must allege with at least some
degree of particularity overt acts by specific defendants
which support the claims, vague and conclusory allegations
fail to satisfy this standard. Additionally, it is impossible
for the court to conduct the screening required by law when
the allegations are vague and conclusory.
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). An in forma pauperis complaint that merely repeats
pending or previously litigated claims may be considered
abusive and dismissed under § 1915. See id.
“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 v. Cal. Dept. Of Health
Services, 487 F.3d 684, 688 (9th Cir. 2007) (quoting
Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir.
1977) (overruled on other grounds by Taylor v.
Sturgell, 553 U.S. 880 (2008)).
review of the complaint and the court's docket, it
appears this action is identical to another case plaintiff
filed in this court, Branch v. Swarthout,
2:15-cv-0528-EFB. That prior case was dismissed with
prejudice on July 6, 2015. Plaintiff then filed this
duplicative action on August 10, 2015. In both cases,
plaintiff is challenging the length of his confinement. He
contends he should have been released from prison by November
14, 2007, but that he was illegally confined until September
12, 2014. The complaints filed in both actions are nearly
identical. Thus, this action should be dismissed as
addition, as set forth in the decision dismissing the prior
case, plaintiff is attempting to challenge the length of his
confinement which sounds in habeas, not a § 1983 action.
See 28 U.S.C. § 2254, Preiser v.
Rodriguez, 411 U.S. 475 (1973). Where a § 1983
action seeking monetary damages or declaratory relief alleges
constitutional violations which would necessarily imply the
invalidity of the prisoner's underlying conviction or
sentence, or length of confinement, such a claim is not
cognizable under § 1983 unless the conviction or
sentence has first been invalidated on appeal, by habeas
petition, or through some similar proceeding. See Heck v.
Humphrey, 512 U.S. 477, 483-84 (1994). The court
previously determined plaintiff had challenged the length of
his sentence in a federal habeas action filed in the Southern
District of California, which was denied. See Order,
Doc. 7, Branch v. Swarthout, 2:15-cv-0528-EFB. Thus,
because his sentence was not reversed or invalidated, his
§ 1983 challenge is Heck-barred.
on the foregoing, the undersigned recommends that this action
be dismissed as duplicative of Branch v. Swarthout,
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within 14 days
after being served with these findings and recommendations,
any party may file written objections with the court.
Responses to objections shall be filed within 14 days after
service of objections. Failure to file objections within the
specified time may waive the right to appeal. See
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
 The court also found the doctrine of
res judicata could also bar plaintiff's claim as he had
challenged the sentence in a habeas petition. The same could
apply to this case. See Hawkins v. Risley, 984 F.2d ...