Opinion
3:19-CV-1556-L-BH
05-27-2022
SHERIDON SHELBY, Plaintiff, v. KWIK KAR, et al., Defendants.
Referred to U.S. Magistrate Judge
By Special Order No. 3-251 , this pro se case has been automatically referred for judicial screening.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
Based on the relevant filings and applicable law, the case should be dismissed with prejudice.
I. BACKGROUND
On August 13, 2019, Sheridon Shelby (Plaintiff) filed this pro se action against his former employer for alleged discrimination based on race and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). (See doc. 3.) He claims that after he complained of racist remarks and harassment by his manager, he was fired for not having a valid driver's license, while other workers of a different race who also did not have driver's licenses were retained. (Id. at 1, 8.) Except for the first page, his complaint in this case consists of the same complaint he previously filed against his former employer in Shelby v. Kwik Kar, No. 3:18-CV-532-B (N.D. Tex. March 7, 2018), doc. 3. (Id. at 2-10.) His prior lawsuit was dismissed on May 2, 2019, after the court found that his former employer did not have enough employees to meet the numerosity requirement for a Title VII action. See No. 3:18-CV-532-B, docs. 75, 76. Plaintiff admits that he has previously sued his former employer based on the same facts, and that this lawsuit duplicates or raises the same claims as his earlier lawsuit, but he contends there are “some different supporting facts.” (doc. 8 at 3.)
Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers at the bottom of each filing.
The same documents are also attached to his answers to two magistrate judge's questionnaires. (See docs. 8, 12.)
II. PRELIMINARY SCREENING
Because Plaintiff has been permitted to proceed in forma pauperis, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2)(B). That statute provides for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.
A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A duplicative in pauperis complaint that “seek[s] to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated by the IFP plaintiff” may also be dismissed as frivolous under § 1915. Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 493 U.S. 969 (1989); see also Humphrey v. Luna, 59 F.3d 1242, 1242 (5th Cir. 1995) (per curiam) (Table; text on Westlaw) (complaint may also be dismissed as frivolous when a pauper “file[s] successive in forma pauperis suits that duplicate claims made in other pending or previous lawsuits”) (citing Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) (pending lawsuits); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (previous lawsuits)). The addition of different defendants in the successive action does not change the frivolous or duplicative nature of the case, and a court may properly dismiss it. See Bailey, 846 F.2d at 1020-21.
Plaintiff admits that he filed a prior lawsuit against his former employer raising identical claims regarding his termination. (doc. 8 at 3.) In fact, he relies on the same complaint and underlying charge of discrimination as in his prior lawsuit. This lawsuit is therefore duplicative and subject to dismissal with prejudice as frivolous under 28 U.S.C. § 1915(e)(2)(B) as frivolous. See Stamps v. University of Texas at Austin, No. 1:22-cv-00054-LY-SH, 2022 WL 790353 (W.D. Tex. Feb. 22, 2022) (recommending dismissal of discrimination lawsuit as frivolous because of pending “nearly identical discrimination lawsuit”); Styles v. Air Serve Corp., No. 3:18-CV-692-D-BN, 2018 WL 2271178 (N.D. Tex. Apr. 24, 2018) (recommending dismissal of duplicative employment action based on same charge of discrimination as prior lawsuit as malicious), recommendation adopted by 2018 WL 2271160 (N.D. Tex. May 17, 2018); see also Waller v. Tuten, 821 Fed.Appx. 389, 390 (5th Cir. 2020) (finding no reversible error in the district court's finding that previously-asserted § 1983 claim was duplicative and therefore frivolous)(citing Bailey, 846 F.2d at 1021); see also Toombs v. Massingill, 647 Fed.Appx. 425 (5th Cir. 2016) (finding no abuse discretion in the district court's determination that a complaint duplicative of a prior § 1983 action was malicious) (citing Bailey); Thornton v. Merchant, 526 Fed.Appx. 385, 387 (5th Cir. 2013) (finding no error in dismissal of claim raised in a previous § 1983 action as duplicative despite the plaintiff's argument that the claim was never litigated on the merits) (citing Bailey); Potts v. Texas, 354 Fed.Appx. 70, 71 (5th Cir. 2009) (same).
Plaintiff's verified answers to the magistrate judge's questionnaires constitute an amendment to his complaint. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
Even if this lawsuit is not duplicative and therefore frivolous, as found in his previous lawsuit, Plaintiff's Title VII claims against his former employer would still be barred by the numerosity requirement.
IV. RECOMMENDATION
Plaintiff's duplicative complaint should be DISMISSED with prejudice as frivolous under 28 U.S.C. § 1915(e)(2).
SO RECOMMENDED on this 27th day of May, 2022.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).