Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL PERVOE, Case No.: 3:26-cv-1360-JES-SBC CDCR# C-59138, 12 ORDER: (1) DISMISSING CIVIL Plaintiff, 13 ACTION AS DUPLICATIVE AND vs. FRIVOLOUS PURSUANT TO 28 14 U.S.C. § 1915A(b)(1) JEFF MACOMBER, WILLIAM 15 HOLLOWAY, DANIELLE [ECF No. 2] 16 CONCEPCION-RESENTREN, PEREZ, DAVID J. CLAYTON, ESEGUERRA, 17 CDCR, 18 Defendants. 19 20 Plaintiff Michael Pervoe (“Plaintiff”), currently incarcerated at R.J. Donovan 21 Correctional Facility (“RJD”) and proceeding pro se, has filed this civil rights Complaint. 22 ECF No. 1. Because Plaintiff raised the same claims against the largely the same 23 Defendants in a prior civil rights action that is still pending in S.D. Cal. Civil Case No. 24 3:25-cv-2271-CAB-MP, the Court dismisses this case as duplicative and frivolous. 25 I. SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915A(b) 26 The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, obligates the 27 Court to review complaints filed by anyone “incarcerated or detained in any facility who 28 is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the 1 terms or conditions of parole, probation, pretrial release, or diversionary program,” “as 2 soon as practicable after docketing” and regardless of whether the prisoner prepays filing 3 fees or moves to proceed in forma pauperis (“IFP”). See 28 U.S.C. § 1915A(a), (c). 4 Pursuant to this provision of the PLRA, the Court is required to review prisoner complaints 5 which “seek[] redress from a governmental entity or officer or employee of a governmental 6 entity,” and to dismiss those, or any portion of those, which are “frivolous, malicious, or 7 fail[] to state a claim upon which relief may be granted,” or which “seek monetary relief 8 from a defendant who is immune.” 28 U.S.C. § 1915A(a), (b)(1)-(2); Resnick v. Hayes, 9 213 F.3d 443, 446–47 (9th Cir. 2000); Hamilton v. Brown, 630 F.3d 889, 892 n.3 (9th Cir. 10 2011). “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits 11 need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th 12 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 13 2012)). 14 Plaintiff’s Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. 15 § 1915A(b)(1) because it is duplicative of another civil action he previously filed and is 16 currently litigating in this Court. See Pervoe v. Macomber, et al.., S.D. Cal. Civil Case No. 17 3:25-cv-2271-CAB-MMP (“Pervoe I”). A court “‘may take notice of proceedings in other 18 courts, both within and without the federal judicial system, if those proceedings have a 19 direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) 20 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 21 In Pervoe I, Plaintiff claimed in his original complaint that he suffers from 22 incontinence and ulcerative colitis for which he was granted single-cell accommodations 23 while he was previously incarcerated in Stockton. When Plaintiff arrived at RJD, however, 24 he alleged that Defendants Macomber, Perez, Clayton and Esguerra discontinued his single 25 cell accommodation and cleared him for a double cell assignment. See Pervoe I, ECF No. 26 1 at 3–6. When Plaintiff refused to accept a cellmate on August 25, 2025, Plaintiff was 27 charged with a disciplinary infraction and placed in Administration Segregation. See id. 28 Plaintiff alleged in his original complaint that Defendants violated his rights under the 1 Americans with Disabilities Act, the Rehabilitation Act, the Eighth Amendment and the 2 Fourteenth Amendment. See id. On September 25, 2025, the Court dismissed the case 3 because Plaintiff failed to pay the filing fee or properly move to proceed in forma pauperis 4 (“IFP”). Pervoe I, ECF No. 4. On November 21, 2026, Plaintiff filed an IFP motion in 5 Pervoe I, ECF No. 5, and on December 5, 2025, Plaintiff filed a Motion for Leave to File 6 an Amended Complaint. Pervoe I, ECF No. 7. In his Motion for Leave to Amend, Plaintiff 7 stated he wished to add additional defendants to his suit, including Holloway. Id. at 1, 3. 8 On March 18, 2026, the Court in Pervoe I granted Plaintiff’s IFP motion and granted him 9 leave to file an amended pleading that is complete in itself no later than April 30, 2026. 10 On March 2, 2026, while the motion to amend his pleading in Pervoe I was pending, 11 Plaintiff initiated the instant civil action, Pervoe v. Macomber, et al., S.D. Cal. Civil Case 12 No. 3:26-cv-1360-JES-SBC (“Pervoe II”). In Pervoe II, Plaintiff also alleges he suffers 13 from ulcerative colitis which requires he be provided single cell accommodations. Pervoe 14 II, ECF No. 1 at 3–6. He alleges Defendants have violated his rights under the Americans 15 with Disabilities Act, the Rehabilitation Act and Eighth Amendment by failing to provide 16 him with a single cell accommodation and have “continually” tried to force him into double 17 cell housing. Id. at 4–6. 18 As pleaded, the Court finds Plaintiff’s claims in the instant case, Pervoe II, are 19 duplicative of the claims alleged in Pervoe I. The two cases contain similar allegations, 20 allege the same causes of action arising from the failure to provide Plaintiff with a single 21 cell classification, and are filed by the same Plaintiff against largely the same defendants. 22 Compare Pervoe I, Case No. 3:25-cv-2271-CAB-MMP, ECF Nos. 1, 19, with Pervoe II, 23 Case No. 3:26-cv-1360-JES-SBC, ECF No. 1. A prisoner’s complaint is considered 24 frivolous under 28 U.S.C. § 1915A(b)(1) if it “merely repeats pending or previously 25 litigated claims.” Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing 26 former 28 U.S.C. § 1915(d)) (citations and internal quotations omitted). Thus, the Court 27 finds the instant action duplicative of Pervoe v. Macomber, et al., S.D. Cal. Civil Case No. 28 3:25-cv-2271-CAB-MMP. As such, dismissal of this duplicative and subsequently filed 1 || case pursuant to 28 U.S.C. § 1915A(b)(1) is warranted. See Cato, 70 F.3d at 1105 n.2; 2 || Resnick, 213 F.3d at 446 n.1; see also Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 3 || 688-89 (9th Cir. 2007) (“[I]n assessing whether the second action is duplicative of the first, 4 || we examine whether the causes of action and relief sought, as well as the parties or privies 5 ||to the action, are the same.”’), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 6 || 880, 904 (2008). The Court notes that in Pervoe J, on March 18, 2026, the Court granted 7 || Plaintiff leave to file an amended complaint which “include[s] the Case No. 3:25-cv-2271- 8 || CAB-MMP, name[s] all the Defendants he wishes to hold liable and re-allege[s] the factual 9 || basis for each discrete cause of action he seeks to pursue. . . by April 30, 2026.” Pervoe I, 10 || ECF No. 9 at 6—7. Thus, to the extent Plaintiff wishes to proceed with his claims, he may 11 so as directed by the Court in Pervoe I, 3:25-cv-2271-CAB-MMP, ECF No. 9. 12 Accordingly, because the Court finds this case, Pervoe IT, Case No. 3:26-cv-1360- 13 ||JES-SBC to be duplicative of Pervoe I, it is dismissed as frivolous. See 28 U.S.C. 14 }/§ 1915A(b)(1); see also Cato, 70 F.3d at 1105 n.2. 15 II. CONCLUSION AND ORDER 16 Good cause appearing, the Court: 17 (1) DISMISSES this civil action as frivolous pursuant to 28 U.S.C. 18 1915A(b)(1). 19 (2) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 20 1128 U.S.C. § 1915(a)(3). 21 (3) DIRECTS the Clerk of the Court to enter a judgment of dismissal in S.D. Cal. 22 || Civil Case No. 3:26-cv-1360-JES-SBC and to close the file. 23 IT IS SO ORDERED. 24 || Dated: March 24, 2026 25 4 aw— dnr— “hi 26 Honorable James E. Simmons Jr. 7 United States District Judge 28 4 oe □□