1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GUADALUPE VASQUEZ, No. 2:24-cv-00770-EFB (PC) 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 MARKET SQUARE HONEY BUN

OWNERS,

15 Defendant. 16

17 Plaintiff is a state prisoner proceeding without counsel in an action brought pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20

I. In Forma Pauperis Application

21 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 24 1915(b)(1) and (2). 25

II. Screening Requirement and Standards

26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 1 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 2 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 4 relief.” Id. § 1915A(b). 5 This standard is echoed in 28 U.S.C. § 1915(e)(2), which requires that courts dismiss a 6 case in which a plaintiff proceeds in forma pauperis at any time if it determines, among other 7 things, that the action “is frivolous or malicious,” “fails to state a claim on which relief may be 8 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” “[The] 9 term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, 10 but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) 11 (discussing the predecessor to modern § 1915(e)(2), former § 1915(d)). Thus, § 1915(e)(2) 12 allows judges to dismiss a claim based on factual allegations that are clearly baseless, such as 13 facts describing “fantastic or delusional scenarios.” Id. at 327-38. 14 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 15 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 16 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 17 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 18 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 19 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 20 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 21 U.S. 662, 679 (2009). 22 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 23 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 24 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 25 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 26 678. 27 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 28 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 1 content that allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 3 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 4 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 5 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 6 I. Screening Order 7 Plaintiff alleges that, while biting into a “Honey Bun” he had purchased from the prison 8 canteen, “a stick with some small pieces were all in my mouth.” ECF No. 1 at 3. Plaintiff 9 washed out his mouth. Id. Unidentified medical personnel at the prison denied plaintiff care. Id. 10 at 4. Plaintiff does not allege any actual physical injury. 11 This action must be dismissed because it is duplicative of an earlier-filed, and still 12 pending, case – Jose Guadalupe Vasquez v. Honey Bun, et al., E.D. Cal. Case No. 2:24-cv-00684- 13 TLN-AC (hereinafter “Vasquez I”). The court takes judicial notice pursuant to Federal Rule of 14 Evidence 201 of plaintiff’s complaint in Vasquez I, which also names defendant Honey Bun 15 (along with an additional defendant, the State of California) and contains the same allegations. 16 Vasquez I, ECF No. 1. A case pursued by an in forma pauperis litigant may be dismissed as 17 duplicative where it involves the same subject matter and is pursued against the same defendants. 18 Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). “Plaintiffs generally have no right 19 to maintain two separate actions involving the same subject matter at the same time in the same 20 court and against the same defendant. Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 21 (9th Cir. 2007). 22 If plaintiff intended the complaint he filed in this action to be filed as an amended 23 complaint in Vasquez I, he must correct the caption by changing the case number and the named 24 parties to match the caption in Vasquez I and file it in that case. Alternatively, he may simply 25 inform the court that this was his intent and request that the court direct that this new complaint 26 be filed as an amended complaint in Vasquez I, in which case the court will vacate the orders 27 granting in forma pauperis status and directing collection of the filing fee. Any such notice and 28 request must be filed within fourteen days after being served with these findings and 1 || recommendations. 2 Il. Order and Recommendation 3 Accordingly, it is ORDERED that: 4 1. Plaintiffs motion to proceed in forma pauperis (ECF No. 4) is GRANTED; 5 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 6 in accordance with the notice to the California Department of Corrections filed 7 concurrently herewith; 8 3. The Clerk of Court randomly assign a district Judge to this action. 9 It is further RECOMMENDED that the case be dismissed without leave to amend as 10 | duplicative of Jose Guadalupe Vasquez, E.D. Cal. Case No. 2:24-cv-00684-TLN-AC. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 || after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 || objections shall be served and filed within fourteen days after service of the objections. The 17 || parties are advised that failure to file objections within the specified time may waive the right to 18 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 19 | v. Yist, 951 F.2d 1153 (9th Cir. 1991).

21 || Dated: January 10, 2025 Zot) tie TeLACL

EDMUND F. BRENNAN

22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28