United States District Court, M.D. Louisiana
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary ("LSP"), Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Warden N. Burl Cain, Secretary James LeBlanc and the Robert E. Barrow Treatment Center, complaining that prison personnel at LSP have refused his requests for blood typing. The plaintiff contends that blood-typing will prove his innocence in connection with criminal convictions entered against him in 1991 in the Civil District Court for the Parish of Orleans, State of Louisiana.
Pursuant to 28 U.S.C. §§ 1915(e) and 1915A, this Court is authorized to dismiss an action or claim brought by a prisoner against a governmental entity or an officer or employee of a governmental entity if satisfied that the action or claim is frivolous, malicious or fails to state a claim upon which relief may be granted. An action or claim is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hicks v. Garner, 69 F.3d 22, 24-25 (5th Cir. 1995). A claim is factually frivolous if the alleged facts are "clearly baseless, a category encompassing allegations that are fanciful, ' fantastic, ' and delusional.'" Id. at 32-33. A claim has no arguable basis in law if it is based upon an indisputably meritless legal theory, "such as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not only the authority to dismiss a claim which is based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual contentions are clearly baseless, a category encompassing allegations that are fanciful, fantastic and delusional. Denton v. Hernandez, supra, 504 U.S. at 32. Pleaded facts which are merely improbable or strange, however, are not frivolous for purposes of § 1915. Id. at 33; Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be made at any time, before or after service of process and before or after an answer is filed. See Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
Applying the foregoing standard, the Court finds that the plaintiff's Complaint fails to state a claim cognizable in this Court. Specifically, it has been recognized that "[a] case may be dismissed as malicious if it duplicates claims that the same plaintiff has raised in previous or pending litigation." Lewis v. Secretary of Public Safety and Corrections, 508 Fed.Appx. 341, 343-44 (5th Cir.), cert. denied, 133 S.Ct. 2802 (2013). "A case is duplicative if it involves the same series of events' and allegations of many of the same facts as an earlier suit.'" Id. Upon a review of the records of this Court, it appears that, in a separate prior lawsuit filed by the plaintiff before this Court, the plaintiff has asserted identical claims against defendants Burl Cain and James LeBlanc. See Tonnie Luckett v. Warden Burl N. Cain, et al., Civil Action No. 13-0722-SDD-RLB (M.D. La.). Accordingly, inasmuch as the claims asserted in the instant proceeding are duplicative of the claims asserted by the plaintiff in the referenced prior proceeding, this proceeding is subject to dismissal as duplicative.
It is recommended that this action be dismissed as legally frivolous and malicious within the meaning of 28 ...