United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE
DISMISSED AS DUPLICATIVE (ECF No. 1)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
(21) DAY DEADLINE
LaKeith LeRo McCoy (“Plaintiff”) is a state
prisoner proceeding pro se in this action under 42 U.S.C.
§ 1983. This action was removed to this Court on
November 23, 2016 from the Kern County Superior Court. (ECF
No. 1.) Plaintiff consented to the jurisdiction of a United
States Magistrate Judge. (ECF No. 4.) Plaintiff's
complaint is currently before the Court for screening.
Screening Requirement and Standard The Court is
required to screen complaints brought by prisoners seeking
relief against a governmental entity and/or against an
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). Plaintiff's complaint, or any portion
thereof, is subject to dismissal if it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b); 28
U.S.C. § 1915(e)(2)(B)(ii).
is currently incarcerated at California Correctional
Institution (“CCI”) in Tehachapi, California. The
events in the complaint are alleged to have occurred while
Plaintiff was incarcerated at CCI. Plaintiff names the CDCR,
Tony Chavez, Kim Holland, Anthony Steiber, M. Garikaparthi,
and John Keeler, Plaintiff alleges that in March 2012 he was
diagnosed as being allergic to eggs. In summary, Plaintiff
alleges that in and throughout 2013, Plaintiff was not given
food to accommodate his food allergy and as a result he lost
weight and suffered other harms as a result of food
Another Pending Action
September 16, 2013, Plaintiff filed McCoy v. M.
Garkaparthi, et al., No. 1:13-cv-01495-DAD-BAM
(“McCoy I”). The complaint filed in
McCoy I also complains of food deprivation in and
throughout 2013 at CCI. That claim is now pending following
an appeal before the Ninth Circuit Court of Appeals and
denial of defendants' motion to dismiss. See Doc. 19, 48,
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). A 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. “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. Cal. Dep't of Health
Servs., 487 F.3d 684, 688, 692-94 (9th Cir. 2007),
overruled on other grounds by Taylor v. Sturgell,
553 U.S. 880, 904 (2008).
assess whether a claim is duplicative, courts use the test
for claim preclusion. “Thus, in 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.”
Adams, 487 F.3d at 689 (citations omitted).
“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.” Id. at 688 (internal quotations
and citations omitted).
discussed above, the complaint in McCoy I is nearly
identical to the complaint filed in the instant case. In both
cases, Plaintiff raises nearly the same claims, apparently
arising out of the same events, involving the same parties,
and infringing upon the same rights.
the Court finds that this case is duplicative of
Plaintiff's prior current pending case because the
claims, parties, and requested relief do not significantly
differ between the two actions.