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Malloy v. County of Montgomery

United States District Court, M.D. Alabama, Northern Division

August 31, 2018

ARTHUR BRENNAN MALLOY, AIS #101329, Plaintiff,
v.
COUNTY OF MONTGOMERY, ALABAMA, et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This 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 3.[1] 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.

         Malloy 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.

         Upon 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).[2]

         II. DISCUSSION

         Malloy 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.[3]

         The claims set forth by Malloy in this case are indistinguishable from the claims previously presented against the same defendants in Malloy's prior actions.[4] 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).

         In 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.[5] 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. § 1915(e)(2)(B)(i).

         III. CONCLUSION

         Accordingly, 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.

         On or 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 made.

         Frivolous, 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. ...


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