Opinion
No. 3:05-CV-0345-D.
March 21, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a pretrial detainee. Parties: Plaintiff is presently confined at FCI Seagoville in Seagoville, Texas. Defendants are Dallas Police Officers Patrick Starr and Joe D. King. The court has not issued process in this case.
Plaintiff filed this action on January 31, 2005, in the United States District Court for the Southern District of Texas, Houston Division, which in turn transferred it to this court on February 11, 2005. See Longmire v. Starr, et al., 4:05cv0311 (S.D. Tex.).
Findings and Conclusions: Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
The complaint in this action constitutes repetitive litigation. It is identical to the one which Plaintiff filed on February 14, 2005, and which is presently pending before District Judge Barbara M.G. Lynn. See Longmire v. Starr, et al., 3:05cv0315-M (N.D. Tex.) (referred to Magistrate Judge Sanderson).
The court may properly dismiss an action when it "duplicates allegations of another pending federal lawsuit by the same [person]." See Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993). "Ordinarily," the Court dismisses "the later-filed action . . . in favor of the case that was filed earlier." Id. at 995.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the complaint in this action be dismissed without prejudice to Plaintiff pursuing the earlier-filed suit, No. 3:05cv0315-M.
The court clerk will file and docket a copy of the complaint, filed on January 31, 2005, in No. 3:05cv0315-M.
A copy of this recommendation will be mailed to Plaintiff.