United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.
Plaintiff,
Emmitt Jones, an inmate incarcerated at the Bullock
Correctional Facility in Union Springs, Alabama, files this
42 U.S.C. § 1983 action against Sergeant Charmane
Baskin. Jones alleges Defendant Baskin subjected him to an
excessive use of force on August 10, 2018, by macing him and
beating him with a baton. Jones seeks trial by jury, damages,
and injunctive relief. Upon review, the court concludes that
dismissal of this case prior to service of process is
appropriate under 28 U.S.C. § 1915(e)(2)(B).[1]
I.
DISCUSSION
Under
28 U.S.C. § 1915(e), a court is authorized to allow
indigent litigants to proceed in forma pauperis
without paying administrative costs of proceeding with a
civil or criminal action or appeal. The statute, however,
protects against abuses of this privilege by allowing a
district court to dismiss a case “at any time if the
court determines that . . . the action or appeal . . . is
frivolous or malicious.” 28 U.S.C. §
1915(e)(2)(B)(i). Similarly, under 28 U.S.C. § 1915A,
courts are required, before docketing (or as soon as
practicable), to “screen” the complaint. 28
U.S.C. § 1915A(a). Upon this screening, “the court
shall . . . dismiss the complaint, or any portion of the
complaint, if the complaint . . . is frivolous, malicious, or
fails to state a claim upon which relief may be
granted.” 28 U.S.C. § 1915A(b).
A
complaint permitted to proceed in forma pauperis
which merely “repeats pending or previously litigated
claims may be considered abusive and dismissed under the
authority of section 1915[e)(2)(B)(i)]” as
“malicious.” Bailey v. Johnson, 846 F.2d
1019, 1021 (5th Cir. 1988) (citations omitted) (finding the
court did not abuse its discretion in dismissing an action as
duplicative of prior litigation containing the same claims
but against different defendants); Bagby v.
Karriker, 555 Fed. App'x. 405, 406 (5th Cir. 2014)
(unpublished) (affirming the dismissal of the complaint as
malicious and frivolous because it duplicated a prior action
as the claims it raised could be fairly said to be arising
from the same series of events); Perry v. Culliver,
2012 WL 1994917, at *2 (S.D. Ala.) (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) (quoting Neitzke v. Williams, 490 U.S.
319, 324 (1989)).
In
determining whether a dismissal 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; Ridge Gold Standard Liquors, Inc. v.
Joseph E. Seagram & Sons, Inc., 572 F.Supp. 1210,
1213 (N.D. Ill. 1983) (“Generally . . . a suit is
duplicative of another suit if the claims, parties, and
available relief do not significantly differ between the two
actions.”). The complaint filed in this case relies on
the same challenge against the same defendant as another
complaint filed by Jones with this court. The court has
considered each aspect of Jones' litigation and finds his
complaint is repetitive of the claims he presents in
Jones v. Baskin, Civil Action 2:18-CV-960-MHT (M.D.
Ala.). That action remains pending. Because the subject of
Jones' complaint arises out of the same factual
allegations asserted by him in the earlier civil action, it
is subject to dismissal under 28 U.S.C. §
1915(e)(2)(B)(i) as duplicative and malicious. See
Bailey, 846 F.2d at 1021; Ridge Gold, 572
F.Supp. at 1213 (N.D. Ill. 1983) (“The irrationality of
tolerating duplicative litigation in the federal system is
all the more pronounced where, as here, two federal judges
sitting on the same district court are . . . devoting scarce
judicial resources to the adjudication of the same
charges.”); Curtis v. Citibank, N.A, 226 F.3d
133, 138 (2d Cir. 2000) (“As part of its general power
to administer its docket, a district court may stay or
dismiss a suit that is duplicative of another federal court
suit.”).
II.
CONCLUSION
Accordingly,
it is the RECOMMENDATION of the Magistrate Judge that
Plaintiff's complaint be DISMISSED with prejudice prior
to service of process under 28 U.S.C. §
1915(e)(2)(B)(i).
It is
further
ORDERED
that on or before February 28, 2019,
Plaintiff may file an objection to the Recommendation. Any
objection filed must specifically identify the factual
findings and legal conclusions in the Magistrate Judge's
Recommendation to which Plaintiff objects. Frivolous,
conclusive or general objections will not be considered by
the District Court. This Recommendation is not a final order
and, therefore, it is not appealable.
Failure
to file a written objection to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar a party from a de novo determination by the
District Court of factual findings and legal issues covered
in the report and shall "waive the right to challenge on
appeal the district court's order based on unobj ected-to
factual and legal conclusions" except upon grounds of
plain error if necessary in the interests of justice. 11th
Cir. R. 3-1; see Resolution Trust Co. v. Hallmark
Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993);
Henley v. Johnson, 885 F.2d 790, 794 (11th Cir.
1989).
---------
Notes:
[1]
The court granted Jones leave to
proceed in this action in forma pauperis. Doc.
3. A prisoner who is allowed to proceed in forma
pauperis in this court will have his complaint screened
in accordance with the provisions of 28 U.S.C. ยง
1915(e)(2)(B). This screening procedure requires the court to
dismiss a prisoner's civil action prior to service of
process if it determines that the complaint is frivolous,
malicious, fails to state a claim upon which relief may be
granted, or ...