Opinion
No. 3:03.CV-1113-K.
June 6, 2003.
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background
Plaintiff has filed this unspecified civil action against the Juanita Kraft Postal Service, a United States Post Office facility in Dallas, Texas. No process has been issued in this case.
Plaintiff has filed a previous federal complaint against the Juanita Kraft Postal Service. See McGill v. Juanita Kraft Postal Service, No. 3:03-CV-0828-N (N.D. Tex. 2003) (Compl. filed Apr. 21, 2003). On May 29, 2003, United States Magistrate Judge Jeff Kaplan of this Court construed the action as asserting a claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671-80. See id. (Findings Recommendation of the United States Magistrate Judge dated May 29,2003.) Judge Kaplan recommended that the Court summarily dismiss that action as frivolous pursuant to 28 U.S.C. § 1915(e)(2). See id. The prior action thus remains pending.
II. PRELIMINARY SCREENING
The Court has permitted plaintiff to proceed in forma pauperis. His complaint is thus subject to sua sponte dismissal under 28 U.S.C. § 1915 (e)(2). That section provides for sua sponte dismissal, if the Court finds the complaint "frivolous or malicious" or if it "fails to state a claim upon which relief may be granted." A claim is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp.2d 768, 769 (N.D. Tex. 2000).
Courts may appropriately dismiss an in forma pauperis action as frivolous, when the action "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." Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989). Although Wilson is not directly on point because plaintiff's prior action has not yet been decided against him, the case is, nevertheless, persuasive as to what constitutes a malicious filing when a prior case filed by the same plaintiff remains pending. See Pittman v. Moore, 980 F.2d 994,994 (5th Cir. 1993). In Pittman, the Fifth Circuit Court of Appeals noted that Wilson "essentially held that pauper status does not entitle a plaintiff to avoid the ordinary rules of res judicata." 980 F.2d at 994. The Circuit then agreed that a complaint is malicious when it "duplicates allegations of another pending federal lawsuit by the same plaintiff." Id. at 995. Reading Pittman and Wilson in conjunction, it is clear that the Court may dismiss an action as malicious when the complaint raises claims that would be barred by the principles of res judicata, whether or not the prior litigation has ended unsuccessfully for the plaintiff.
It is well-settled that "res judicata bars all claims that were brought or could have been brought based on the operative factual nucleus." Ellis v. Amex Life Ins. Co., 211 F.3d 935, 938 n. 1 (5th Cir. 2000). A complaint is thus malicious when it "duplicates allegations of another pending federal lawsuit by the same plaintiff" or when it raises claims arising out of a common nucleus of operative facts that could have been brought in the prior litigation. See Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993).
III. FINDINGS
The instant action is malicious within the meaning of Pittman. Judge Kaplan has recommended the dismissal of a previous action filed by plaintiff that stemmed from the same set of facts and occurrences that form the basis for the instant complaint. The defendants in the two cases are the same. There is no apparent reason plaintiff could not have pursued the instant claims in his previous litigation.
The Court may either consolidate the two actions or dismiss the instant action without prejudice to plaintiff pursuing his other case, "including any assertions therein of any of the claims in the instant suit." See Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993). "Ordinarily," however, the courts dismiss "the later-filed action . . . in favor of the case that was filed earlier." Id. at 995. In this instance, the Court deems it appropriate to dismiss the instant action. There appears to be no extraordinary reason to prompt consolidation. The Court should dismiss the instant action as malicious within the meaning of 28 U.S.C. § 1915 (e)(2)(B).
To the extent plaintiff somehow could not have brought the instant claims in his previous action, the Court finds that the FTCA does not provide a remedy for claims "arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." See 28 U.S.C. § 2680(b); see also Insurance Co. of N. Am. v. United States Postal Service, 375 F.2d 756 (5th Cir. 1982). Consequently, plaintiff's claim against the post office is without an arguable basis in law and thus frivolous.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS plaintiff s complaint without prejudice to plaintiff pursuing his earlier-filed suit, McGill v. Juanita Kraft Postal Service, No. 3:03-CV-0828-N (N.D. Tex. 2003). The instant action is malicious within the meaning of 28 U.S.C. § 1915(e)(2)(B). It also states no claim that has an arguable basis in law and is thus frivolous. The dismissal of this action will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).
Section 1915(g), which is commonly known as the "three-strikes" provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.