Latham v. California Department of Corrections and Rehabilitation

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSHUA LATHAM, Case No.: 22-cv-842-MMA (MSB) CDCR #G-48528, 12 ORDER DISMISSING COMPLAINT Plaintiff, 13 PURSUANT TO 28 U.S.C. § 1915A(b) vs. 14 15 CALIFORNIA DEPARTMENT OF 16 CORRECTIONS AND 17 REHABILITATION, et al., 18 Defendants. 19 20 On May 2, 2022, Plaintiff Joshua Latham, a state prisoner proceeding pro se, filed 21 a civil rights complaint pursuant to 42 U.S.C. § 1983 in the San Diego County Superior 22 Court. Doc. No. 1-3. Defendants removed the action to this Court on June 8, 2022. Doc. 23 No. 1. Because the Complaint is duplicative of a Complaint Plaintiff is currently 24 litigating in this Court, it is subject to dismissal. 25 SCREENING PURSUANT TO 28 U.S.C. § 1915A(b) 26 Because Plaintiff is a prisoner, his Complaint requires a pre-answer screening 27 pursuant to 28 U.S.C. § 1915A(b), which provides that the Court must sua sponte dismiss 28 a prisoner’s complaint, or any portion of it, which is frivolous, malicious, fails to state a 1 claim, or seeks damages from defendants who are immune. Rhodes v. Robinson, 621 2 F.3d 1002, 1004 (9th Cir. 2010). “The purpose of § 1915A is to ensure that the targets of 3 frivolous or malicious suits need not bear the expense of responding.” Nordstrom v. 4 Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted). 5 Plaintiff’s claims are subject to sua sponte dismissal pursuant to 28 U.S.C. 6 § 1915A(b)(1) because they are duplicative of claims he raised previously in another civil 7 action he filed in this Court, which is currently pending, Latham v. Pollard, et al., S.D. 8 Cal. Civil Case No. 20cv2177-LAB (BGS). A court “‘may take notice of proceedings in 9 other courts, both within and without the federal judicial system, if those proceedings 10 have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th 11 Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 12 Having now reviewed both pleadings, the Court finds the claims and factual 13 allegations in Plaintiff’s current Complaint are identical and thus duplicative of those he 14 is currently litigating in S.D. Cal. Civil Case No. 20-cv-2177-LAB (BGS). Plaintiff 15 alleges in the current case that while housed at the Richard J. Donovan Correctional 16 Facility, officers from the Investigative Services Unit focused “an illegal microwave 17 weapon on the Plaintiff at all times in a team effort to stalk, sexually abuse, torture, 18 attempt to murder, invade his privacy, retaliate, coerce and manipulate him by use of 19 force with the chemical assent and known carcinogen radiation,” and “zoomed in on 20 Plaintiff’s genitals with body scanner images and sent radiation to his penis to forcefully 21 give him erections with the microwave weapon while they taunted him with their 22 microphones everyday from June 1, 2019 to August 16, 2021.” Doc. No. 1 at 4. He 23 alleges in Case No. 20-cv-2177-LAB (BGS) that in 2019–2021 “the Investigative 24 Services Unit officers [at R.J. Donovan were] stalking, sexually abusing, torturing, 25 invading my privacy, assault and bettering, coercing and manipulating me by use of force 26 with a radioactive technology/weapon covertly from computer,” and that Investigative 27 Service Unit officers are using “radiation” to “listen to my thoughts, force thoughts into 28 my mind, interfere with my thoughts, control my body movements, control my speech, 1 || control my emotions, use my eyes as their cameras, use my ears to listen, view my body 2 || [with] scanner image with capabilities that allow them to zoom in on my organs/body [to] 3 || cause erections, cause erections to go away, cause chest pains, cause headaches, cause me 4 ||to vomit, choke me out and control my breathing, [and] strain and control my intestines 5 bladder.” See Case No. 20-cv-2177-LAB (BGS), Doc. No. 30 at 3; Doc. No. 31 at 6 || 10. 7 “A prisoner’s claims are considered frivolous under 28 U.S.C. § 1915A(b)(1) if 8 “merely repeat[] pending or previously litigated claims.” Cato v. United States, 70 9 || F.3d 1103, 1105 n.2 (9th Cir. 1995). Because Plaintiff is currently litigating the same 10 || claims presented in this action as he is in Case No. 20-cv-2177-LAB (BGS), the Court 11 dismiss this case without leave to amend as frivolous. See Cato, 70 F.3d at 1105 12 ||n.2; Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688-89 (9th Cir. 2007) (“[I]n 13 || assessing whether the second action is duplicative of the first, we examine whether the 14 || causes of action and relief sought, as well as the parties or privies to the action, are the 15 ||}same.”), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008). 16 CONCLUSION 17 The Court DISMISSES the Complaint as frivolous pursuant to 28 U.S.C. 18 1915A(b). Since amendment would be futile, the dismissal is without leave to amend. 19 || See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by 20 || itself, yustify the denial of... leave to amend.”). The dismissal is without prejudice to 21 || Plaintiff pursuing his claims in Case No. 20-cv-2177-LAB (BGS). The Court DIRECTS 22 Clerk of Court to close the case and enter judgment accordingly. 23 IT IS SO ORDERED. 24 || Dated: June 14, 2022 25 BWMiiduh UM - (ikl 26 HON. MICHAEL M. ANELLO 07 United States District Judge 28