United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
case is pending before the court on a 42 U.S.C. § 1983
complaint filed by Arthur Brennan Malloy, a state inmate and
frequent federal litigant. Malloy is presently incarcerated
pursuant to a conviction for first degree robbery and
resulting sentence of life imprisonment without parole
imposed upon him in 1981 by the Circuit Court of Montgomery
County, Alabama. In the current complaint, Malloy alleges
that he is entitled to a reduction of this sentence under
previously effective amendments to the Alabama Habitual
Felony Offender Act, Alabama Code § 13A-5-9, et
seq., and, therefore, the state courts erred in denying
his motion for reconsideration of sentence filed in November
of 2003 pursuant to Alabama Code § 13A-5-9.1. Doc. 1 at
Specifically, Malloy argues that he is entitled to the relief
sought in his motion for reconsideration of sentence-a
reduction of his sentence from life without parole to simple
life-because he has no qualifying prior conviction for a
Class A felony. Malloy also challenges the state courts'
refusals to grant a motion for relief from judgment
challenging the denial of his motion for reconsideration of
sentence. Doc. 1 at 3 & 5.
names as defendants Montgomery County, Alabama; Judge Charles
Price, Judge William A. Shashy; the Alabama Court of Criminal
Appeals; and D. Scott Mitchell, the Clerk of the Alabama
Court of Criminal Appeals. Malloy seeks declaratory relief
reversing the adverse actions taken by the state trial and
appellate courts on his motion for reconsideration of
sentence and the motion for relief from judgment filed with
respect to the denial of his request for reconsideration of
sentence. Doc. 1 at 4-5. Malloy also seeks injunctive relief
in the form of reinstatement of his appeal from the trial
court's denial of his motion for relief from judgment
filed under Alabama Rule of Civil Procedure 60(b) challenging
the decision denying the motion for reconsideration of
sentence. Doc. 1 at 6. Finally, Malloy seeks compensatory and
punitive damages from the defendants. Doc. 1 at 6.
review of the instant complaint and in light of the previous
decision entered by this court in Malloy v. County of
Montgomery, Alabama, et al., No. 2:15-CV-898-MHT-GMB
(M.D. Ala. 2016), affirmed on appeal on September 14, 2016
(appeal deemed frivolous), this case is due to be summarily
dismissed as malicious in accordance with the provisions of
28 U.S.C.§ 1915(e)(2)(B)(i).
challenges the constitutionality of actions taken by the
Circuit Court of Montgomery County, Alabama and the Alabama
Court of Criminal Appeals in denying him a reduction of his
life without parole sentence. The instant complaint presents
claims virtually identical to claims previously presented to
the court and decided adversely to Malloy in No.
2:15-CV-898-MHT-GMB. In that matter, the court determined
that Heck v. Humphrey, 512 U.S. 477 (1994), and its
progeny barred review of the claims set forth by Malloy
challenging the decisions of the state courts in denying him
relief on his motion for reconsideration of sentence and
attendant motion for relief from judgment because a ruling by
this court in favor of Malloy would necessarily imply the
invalidity of his sentence of life without parole.
See Recommendation of the Magistrate Judge (Doc. 5
at 3-6), adopted Doc. 9 at 1-2.
claims set forth by Malloy in this case are indistinguishable
from the claims previously presented against the same
defendants in Malloy's prior actions. Federal courts
are empowered to dismiss an in forma pauperis
complaint as malicious where earlier and later complaints are
substantially identical. 28 U.S.C. § 1915(e)(2)(B)(i)
(providing that a district may dismiss a case “at any
time if the court determines that . . . the action . . . is
frivolous or malicious”); see Van Meter v.
Morgan, 518 F.2d 366, 368 (8th Cir. 1975); Bailey v.
Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (internal
quotation marks omitted) (noting previous determination
“that [r]epetitious litigation of virtually identical
causes of action is subject to dismissal under 28 U.S.C.
§ 1915[e] as malicious”); Cato v. United
States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (internal
quotation marks and citation omitted) (“There is no
abuse of discretion where a district court dismisses under
§ 1915[(e)] a complaint that merely repeats pending or
previously litigated claims.”); see Bagby v.
Karriker, 555 Fed.Appx. 405, 406 (5th Cir. 2014)
(unpublished) (affirming dismissal of complaint as malicious
because it was duplicative of a prior action where the claims
it raised could fairly be said to arise from the same series
of events); see also Perry v. Culliver, 2012 WL
1994917, at *2 (S.D. Ala. 2012) (dismissing a duplicative
action as malicious when the same allegations were made but
against different defendants), adopted, 2012 WL
1994914 (S.D. Ala. 2012). “A litigant whose filing fees
and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.”
Denton v. Hernandez, 504 U.S. 25, 31 (1992)
(internal citation omitted). “Dismissal of the
duplicative lawsuit . . . promotes judicial economy and the
comprehensive disposition of litigation.” Adams v.
California, 487 F.3d 684, 692 (9th Cir. 2007).
determining whether summary dismissal of a case is warranted,
there is no specific test to follow. Rather, courts are
“vested with especially broad discretion.”
Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir.
1986). Courts generally look to the identity of the parties,
the legal and factual claims, and the relief sought to
determine if the complaint is repetitive or malicious.
See Bailey, 846 F.2d at 1021. In the prior cause of
action filed by Malloy, this court dismissed the
case-including the current challenges to the state
courts' adverse rulings on Malloy's motion for
reconsideration of sentence and motion for relief from
judgment-with prejudice as these claims were not properly
before the court in a 42 U.S.C. § 1983 action since
“habeas corpus is the exclusive remedy for a state
prisoner who challenges the . . . duration of his
confinement” and seeks relief from this court which
would impact the term of his incarceration. Heck,
512 U.S. at 481. The circumstances warranting dismissal of
the claims now before the court are unchanged. The court
concludes that the complaint filed by Malloy in the instant
cause of action is malicious, and that summary dismissal of
this case is therefore appropriate under 28 U.S.C. §
it is the RECOMMENDATION of the Magistrate Judge that this
case be dismissed without prejudice prior to service of
process in accordance with the provisions of 28 U.S.C. §
1915(e)(2)(B)(i) as the complaint is malicious.
before September 14, 2018, Plaintiff may
file objections to the Recommendation. Plaintiff must
specifically identify the factual findings and legal
conclusions in the Recommendation to which the objection is
conclusive, or general objections to the Recommendation will
not be considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
shall bar a party from a de novo determination by
the District Court of legal and factual issues covered in the
Recommendation and waives the right of the party to challenge
on appeal the District Court's order based on
unobjected-to factual and legal conclusions accepted or
adopted by the District Court except upon grounds of plain
error or manifest injustice. ...