1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

MICHAEL MACKEY,

11 Case No. 22-cv-04341 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL 13 v.

14 RON BROOMFIELD, et al., 15 Defendants.

16

17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against Warden Rob Broomfield of San Quentin State Prison (“SQSP”), R. 20 Reseler (SQSP Main Control Officer), Secretary Ron Davis, and Director Kathleen 21 Allison. Dkt. No. 4 at 1. The Court dismissed the complaint with leave to amend because 22 the allegations were insufficient to state a claim. Dkt. No. 8. Plaintiff filed an amended 23 complaint. Dkt. No. 9. 24 25 DISCUSSION 26 A. Standard of Review 27 A federal court must conduct a preliminary screening in any case in which a 1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 3 upon which relief may be granted or seek monetary relief from a defendant who is immune 4 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 7 elements: (1) that a right secured by the Constitution or laws of the United States was 8 violated, and (2) that the alleged violation was committed by a person acting under the 9 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 B. Plaintiff’s Claims 11 1. Original Complaint 12 In the original complaint, Plaintiff claimed that SQSP should be single-celling all 13 prisoners in light of Covid 19, and that it was possible to do so by reopening closed 14 buildings which are being used by officers for their breaks. Dkt. No. 4 at 2-3. Plaintiff 15 wanted everyone to be single-celled and that changes be made at SQSP to make that 16 possible. Id. at 3. Liberally construed, the Court found Plaintiff was attempting to state an 17 Eighth Amendment claim for deliberate indifference to his health and safety. Dkt. No. 8 at 18 3. However, the Court found the allegations were insufficient to satisfy the two elements 19 for an Eighth Amendment claim, i.e., that Plaintiff was suffering an objectively, 20 sufficiently serious deprivation and that the named Defendants personally knew that he 21 faced a substantial risk of serious harm and disregarded that risk by failing to take 22 reasonable steps to abate it. Id., citing Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). 23 He was granted leave to amend to allege specific facts against each named Defendant to 24 support an Eighth Amendment claim. Id. 25 2. Amended Complaint 26 Plaintiff has filed an amended complaint that no longer involves a mere failure to 1 transferred from CIM for Covid-19 which resulted in a breakout at the prison. Dkt. No. 9. 2 He names the following defendants: CDCR Secretary Ralph Diaz; CDCR Medical 3 Director R. Steven Tharratt, M.D.; SQSP Warden Ron Davis; SQSP Healthcare Chief 4 Executive/Medical Director Clarence Cryer; SQSP Chief Medical Executive Dr. Alison 5 Pachynski; SQSP Chief Physician and Surgeon Dr. Shannon Garrigan; CIM Medical 6 Directors/Executives; “and all individual mentioned in the OIG Reports with responsibility 7 for the transfer of prisoners to San Quentin.” Id. at 2. 8 Plaintiff challenges the decision to transfer 122 CIM inmates to San Quentin on 9 March 30, 2020, “in disregard of virtually every safety measure[] and policy that existed at 10 the time [and] in doing so, caused the Covid-19 outbreak at San Quentin.” Id. at 4. 11 Plaintiff claims that the transferees were not tested the week prior to the move, and some 12 were symptomatic upon arrival and not properly isolated. Id. Plaintiff describes the 13 outbreak that followed and the various failures by SQSP that contributed to the severity of 14 the outbreak. Id. at 4-5. Plaintiff also claims that the prison’s failure to depopulate 15 resulted in worsening prison conditions, including prolonged lockdowns, “extreme solitary 16 confinement,” and cramped and filthy cells. Id. at 6. Plaintiff’s pleading then makes 17 various references to court findings without including the legal citation. Id. at 7-8. 18 Plaintiff further asserts other claims which are not supported by any facts. Id. at 8-9. 19 Plaintiff seeks damages. Id. at 11. In support, Plaintiff attaches copies of what appear to 20 be news articles regarding the SQSP outbreak. Id. at 13-25. 21 3. Duplicative Action 22 Plaintiff filed a previous action in this district against the same Defendants, among 23 others, making the same allegations as in the instant amended complaint and seeking 24 damages. The previous action, Mackey v. Allison, et al., Case No. 21-cv-09386 BLF 25 (“Mackey I”), is proceeding with counsel and currently stayed pending an appeal on certain 26 issues. Id., Dkt. No. 21. 1 || to dismissal under 28 U.S.C. § 1915 as malicious. Bailey v. Johnson, 846 F.2d 1019, 1021 2 || (Sth Cir. 1988). An in forma pauperis complaint that merely repeats pending or previously 3 || litigated claims may be considered abusive and dismissed under § 1915. Cato v. United 4 || States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); Bailey, 846 F.2d at 1021. An in forma 5 || pauperis complaint repeating the same factual allegations asserted in an earlier case, even 6 || if now filed against new defendants, therefore is subject to dismissal as duplicative. 7 || Bailey, 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975). 8 || “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment 9 || of proceedings, promotes judicial economy and the “comprehensive disposition of 10 || litigation.” Adams v. California, 487 F.3d 684, 692-93 (9th Cir. 2007) (citation omitted), 11 || overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). Here, 2 Plaintiff's case is duplicative of Mackey I because the two suits arise out of the same E 13 || transactional nucleus of facts, i.e., the allegedly unconstitutional transfer and handling of S 14 inmates infected with Covid-19 from CIM to SQSP which resulted in an outbreak, and 3 15 defendants in both cases are parties or privies to the action. See Adams, 487 F.3d at 689. 16 || As this case is duplicative of Mackey I, the instant action will be dismissed.

5 18 CONCLUSION 19 For the foregoing reasons, the complaint is DISMISSED as duplicative. 20 The Clerk shall terminate all pending motions and close the file. 21 IT ISSO ORDERED. 22 || Dated: —— April 27, 2023 Alinfhacicen__

BETH LABSON FREEMAN

23 United States District Judge 24 25 Order of Dismissal 6 PRO-SE\BLF\CR.22\04341Mackey_dism(dupl) 27