Opinion
Civil Action No. 08-cv-02380-BNB.
May 15, 2009
ORDER OF DISMISSAL
Plaintiff, Patricia S. Rudd, filed pro se a motion and affidavit for leave to proceed pursuant to 28 U.S.C. § 1915 and an amended Title VII complaint for money damages that failed to assert any employment discrimination claims. Ms. Rudd was granted leave to proceed in forma pauperis pursuant to § 1915.
On February 24, 2009, Magistrate Judge Boyd N. Boland ordered Ms. Rudd to show cause within thirty days why the instant action should not be dismissed because, despite her improper use of a Title VII complaint form, she had filed a similar action currently pending before the Court against the Colorado Springs, Colorado, police department and police officers who allegedly conducted a warrantless search of her residence on October 27, 2006, and allegedly caused her to suffer injuries in the course of the search. See Rudd v. Sergent [sic] Knollhoff, et al. , No. 08-cv-02379-BNB (D. Colo. filed Nov. 3, 2008).
On April 23, 2009, Ms. Rudd filed a second amended complaint in the instant action and a response to the February 24, 2009, order to show cause. In her response to the show-cause order, Ms. Rudd explains that (1) she removed the Colorado Springs Police Department as a Defendant in No. 08-cv-02379-BNB, (2) she hadn't intended to file two lawsuits in the first place, (3) the instant action now only sues the Colorado Springs Police Department, and (4) she filed a second amended complaint in No. 08-cv-02379-BNB that only sues the police officers who allegedly were acting on behalf of the Colorado Springs Police Department.
The Court must construe liberally the second amended complaint and the response to the show-cause order because Ms. Rudd is not represented by an attorney. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall , 935 F.2d at 1110. For the reasons stated below, the second amended complaint will be dismissed.
In the instant action, Ms. Rudd complains that on October 27, 2006, Colorado Springs police officers conducted a warrantless search of her residence. She alleges that she suffered injuries in the course of the search. Despite the fact that Ms. Rudd now erroneously asserts jurisdiction pursuant to the federal in forma pauperis statute, 28 U.S.C. § 1915, the action she filed in No. 08-cv-02379-BNB makes similar allegations concerning the same October 27, 2006, incident.
As Magistrate Judge Boland informed Ms. Rudd in the February 24, 2009, show-cause order, repetitious litigation of virtually identical causes of action may be dismissed as frivolous or malicious. See Bailey v. Johnson , 846 F.2d 1019, 1021 (5th Cir. 1988) (per curiam); Van Meter v. Morgan , 518 F.2d 366, 368 (8th Cir. 1975) (per curiam). Magistrate Judge Boland also pointed out that the Court may consult its own records to determine whether a pleading repeats pending or previously litigated claims. See Duhart v. Carlson , 469 F.2d 471 (10th Cir. 1972). Ms. Rudd clearly fails to understand that she is wasting scarce judicial resources through repetitious litigation of virtually identical causes of action, i.e., by amortizing her claims over two lawsuits when she could have consolidated into one lawsuit all her claims against all the defendants she intended to sue. Because No. 08-cv-02379-BNB currently is pending before the Court, Ms. Rudd may assert all the claims against all the defendants she intends to sue in that lawsuit, including by adding the Colorado Springs Police Department as a defendant.
The Court will dismiss the instant lawsuit without prejudice, even though by filing two lawsuits concerning the same incident the Court could have dismissed the instant action as frivolous or malicious because this action is repetitive of No. 08-cv-02379-BNB. Accordingly, it is
ORDERED that the second amended complaint and the action are dismissed without prejudice as duplicative of Rudd v. Sergent [sic] Knollhoff, et al. , No. 08-cv-02379-BNB (D. Colo. filed Nov. 3, 2008).