Opinion
No. 4:11CV02216 ERW
02-17-2012
ROY R. GEORGE, Plaintiff(s), v. MICHAEL J. ASTRUE, Defendant(s).
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Roy R. George for leave to commence this action without prepayment of the filing fee pursuant to 28 U.S.C. § 1915. Upon consideration of the financial information provided with the motion, the Court finds that plaintiff is financially unable to pay any portion of the filing fee. As a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Additionally, the Court has reviewed the complaint and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(e)Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. An action is frivolous if it "lacks an arguable basis in either law or fact." Neitzke v. Williams. 490 U.S. 319, 328 (1989). An action is malicious if it is undertaken for the purpose of harassing the named defendants and not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987).
The Complaint
Plaintiff is challenging the Social Security Administration's alleged failure to process his 1997 disability claim. He states that he received the decision of the Administrative Law Judge in 2007. Plaintiff requests back pay.
Discussion
Upon review, the Court finds that plaintiff's claims in the instant action are duplicative of those he asserted in a previously-filed case that this Court dismissed, with prejudice, on September 12, 2008. See George v. Astrue, No. 4:07-CV-1739-ERW (E.D. Mo.). As such, the instant complaint will be dismissed as frivolous and malicious under § 1915(e)(2)(B). See Aziz v. Burrows, 976 F.2d 1158, 1158-59 (8th Cir. 1992); Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975).
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because the complaint is legally frivolous and malicious. See 28 U.S.C. § 1915(e)(2)(B).
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #4] is DENIED, as moot.
A separate Order of Dismissal shall accompany this Memorandum and Order.
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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE