1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADRIAN TOSCANO, Case No.: 25cv0186-LL-SBC

CDCR# V-19411,

12

ORDER DISMISSING CIVIL

Plaintiff, 13 ACTION AS DUPLICATIVE v. PURSUANT TO 28 U.S.C. 14 § 1915A(b)(1) AND DENYING AS

15 MOOT MOTION FOR LEAVE TO

SERGEANT RAMOS,

PROCEED IN FORMA PAUPERIS

16 Defendant. 17 [ECF Nos. 1, 2] 18 19 Plaintiff Adrian Toscano, incarcerated at Centinela State Prison and proceeding pro 20 se, has filed this civil rights complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff 21 has also moved for leave to proceed in forma pauperis (“IFP”). ECF No. 2. Because 22 Plaintiff raised the same claims against the same Defendant in a prior civil rights action, 23 the Court DISMISSES this case as frivolous and DENIES AS MOOT his IFP motion. 24 I. DISCUSSION 25 The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, obligates the 26 Court to review complaints filed by anyone “incarcerated or detained in any facility who 27 is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 28 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 1 soon as practicable after docketing,” and regardless of whether the prisoner prepays filing 2 fees or moves to proceed IFP. See 28 U.S.C. § 1915A(a), (c). Pursuant to this provision of 3 the PLRA, the Court is required to review prisoner complaints which seek “redress from a 4 governmental entity or officer or employee of a governmental entity,” and to dismiss those, 5 or any portion of those, which are “frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or which “seek monetary relief from a defendant who is immune.” 7 28 U.S.C. § 1915A(a), (b)(1)-(2); Resnick v. Hayes, 213 F.3d 443, 446–47 (9th Cir. 2000); 8 Hamilton v. Brown, 630 F.3d 889, 892 n.3 (9th Cir. 2011). “The purpose of § 1915A is ‘to 9 ensure that the targets of frivolous or malicious suits need not bear the expense of 10 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (quoting Wheeler 11 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 12 Plaintiff’s complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. 13 § 1915A(b)(1) since it is duplicative of another civil action he previously filed and litigated 14 in this Court. See Toscano v. Ramos, et al., S.D. Cal. No. 3:22-cv-0321-CAB-BGS 15 (“Toscano I”). A court “‘may take notice of proceedings in other courts, both within and 16 without the federal judicial system, if those proceedings have a direct relation to matters at 17 issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. 18 Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 19 In Toscano I, Plaintiff claimed that “on or about May 30, 2021, Sgt Ramos (ISU) 20 had notified him about a legal manilla envelope with Petitioner’s name on [it], that had 21 been confiscated at another facility.” See Toscano I, ECF No. 1 at 3. Plaintiff alleged this 22 mail contained an appellate brief that “needed to be sent by mail no later than May 21, 23 2021,” in order to be timely filed and claimed its confiscation caused delay and resulted in 24 the state appellate court denying his appeal. Id. at 3–4. On May 10, 2022, Judge Bencivengo 25 screened Plaintiff’s complaint, found his allegations “sufficient to plausibly state[] [a] First 26 Amendment access to courts claim against Ramos,” and directed the U.S. Marshal to effect 27 service upon Ramos pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). Id., ECF 28 No. 5 at 8, 10. 1 On January 22, 2024, after Toscano I was served on Ramos and Plaintiff filed an 2 Amended Complaint re-alleging his access to courts claim, Judge Bencivengo granted in 3 part Ramos’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) without leave to amend 4 because: “(a) Plaintiff fail[ed] [to] plead any facts that Defendant confiscated the legal mail 5 prior to the May 21, 2021, deadline; and (b) Plaintiff fail[ed] to allege a ‘nonfrivolous’ or 6 ‘arguable’ underlying claim.” Id., ECF No. 28 at 4–5. After the Clerk entered a final 7 judgment of dismissal, Plaintiff filed no appeal. Id., ECF No. 29. 8 Instead, approximately one year later, on January 24, 2025, Plaintiff filed the instant 9 complaint, ECF No. 1, which was assigned to this Court as Toscano v. Ramos, S.D. Cal. 10 No. 3:25-cv-0186-LL-SBC (“Toscano II”). In this complaint, Plaintiff again seeks to sue 11 Defendant Ramos for violating his “First Amendment right to access the courts” due to the 12 May 2021 confiscation of his legal mail. See Toscano II, ECF No. 1 at 3. Specifically, 13 Plaintiff repeats his previous claim that “[o]n or about May 30, 2021 Plaintiff was 14 approached by Sergeant Ramos (ISU)[,] [and] [] was advised that he had Plaintiff’s legal 15 mail and that it was being confiscated.” Id. 16 As pleaded, the Court finds Plaintiff’s claim in the instant case duplicative of the 17 claim previously alleged and dismissed in Toscano I. The two complaints name the same 18 Defendant, allege the same cause of action arising from the same mail confiscation 19 incident, and are filed by the same Plaintiff. Compare Toscano I, No. 3:22-cv-0321-CAB- 20 BGS, ECF Nos. 1, 19, with Toscano II, No. 3:25-cv-0186-LL-SBC, ECF No. 1. A 21 prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it “merely 22 repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 23 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal 24 quotations omitted). Because Plaintiff has already brought the same claim presented in the 25 instant action against the same Defendant in Toscano v. Ramos, et al., S.D. Cal. No. 3:22- 26 cv-0321-CAB-BGS, dismissal of this duplicative and subsequently filed civil case pursuant 27 to 28 U.S.C. § 1915A(b)(1) is warranted. See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d 28 at 446 n.1; see also Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688–89 (9th Cir. 1 2007) (“[I]n assessing whether the second action is duplicative of the first, we examine 2 || whether the causes of action and relief sought, as well as the parties or privies to the action, 3 || are the same.”).

CONCLUSION

5 Accordingly, the Court DISMISSES this civil action as frivolous pursuant to 6 ||28 U.S.C. § 1915A(b)(1); DENIES AS MOOT the motion for leave to proceed IFP; 7 ||CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. 8 1915(a)(3); and DIRECTS the Clerk of Court to enter a judgment of dismissal in S.D. 9 || Cal. No. 3:25-cv-0186-LL-SBC and to close the file. 10 IT IS SO ORDERED. 11 Dated: February 24, 2025 NO 12 QF 13 Honorable Linda Lopez 4 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 □□